Veltin v. Cash

Per Curiam: Section 141 of the Municipal Court Code provides that a marshal who fails to return an execution within twenty days is liable to the execution creditor for the amount of the execution. The defendant marshal failed to make such return. He was, therefore, prima facie liable for the amount of the execution and could mitigate the damages only by showing that plaintiff was not aggrieved. (Smith v. Geraty, 61 Misc. 101.) It further appears that after the defendant returned the execution he collected twenty-five dollars from the judgment debtor pursuant to a demand that he had previously made upon him to pay the marshal’s costs. He had no right to retain this collection arbitrarily as the fees to which he would have been entitled if he had collected the judgment. It was, therefore, error to dismiss the complaint. Judgment reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event. All concur; present, Bijur, Mullan and Proskauer, JJ.