Holmes v. Rogers

Barker, P. J., (after stating the facts as above.) On the facts presented on the first motion the order requiring the sheriff to make return of the execution issued on the 29th day of October, 1884, and in default thereof an attachment issue against him, was properly granted. It did not appear that Gilbert’s predecessor in office, to whom the execution was delivered, had made a levy thereunder, or taken any steps towards its execution. It was the duty of the retiring sheriff to turn over the execution to his successor, and it was also the duty of the latter to receive the same, and execute its commands-so far as it was in his power to do so. Code Civil Proe. § 182. The moving affidavit stated facts and circumstances which, if uncontradicted, would justify any court in holding that both the outgoing and incoming sheriff did all their duty as required by the said section, and that the execution came to the hand of the present sheriff, and he thus became charged with its execution. If Mr. Gilbert, the present sheriff, intended to raise an issue with the plaintiff on the material facts stated in the moving affidavits, he was unfortunate in the manner in which he disputed an averment of fact which he was called upon either to deny or explain. He meets those affidavits by a mere denial of the fact in issue, without any attempt to explain his statements made to the plaintiffs’ attorney, as set forth in his affidavit, from which it might he fairly inferred that the execution was delivered to him by his predecessor, and that he had received the same for the purpose of obeying its commands. We fail to discover any error in granting the first order. The motion for a. re503 argument was addressed to the discretion of the special term, and its order will not be interfered with here, unless we can clearly see that the sheriff has made a case which, if presented on the original hearing, would have defeated that motion. It may be conceded that he has fully excused his default, and the merits of the case as presented on the motion for a reargument should be considered. We think, after reading all the papers in the case, that the former sheriff did not make a levy under either execution, while the same were in his hands. The Code provides that within 10 days after the new sheriff has been inducted into office the former sheriff must deliver to him all mandates then in his hands, except such as he fully executed or has begun to execute by the collection of money thereon, or by the seizure of or levy on money or property in pursuance thereof. Section 184. In the second execution it is recited that a levy had been made under the one first delivered to the sheriff, which is an admission by the plaintiff of the fact that a previous levy had been made. But it does not estop the plaintiff from presenting the true state of facts, and showing, if such was the case, that no levy was made by the sheriff to whom the executions were originally delivered. We think the affidavits failed to show that a levy was made by the former sheriff, and that the execution which the present sheriff is required to return, or, in default thereof, an attachment issue against him, was received by him from the hands of his predecessor. Where, on setting aside a default, a judgment is suffered to stand as security, it exists merely as a security, and does not determine any right of the parties in the action; and there is no objection to taking precisely such future proceedings in that action as would be regular and requisite if no security had been given in that form, or that judgment by default had never been entered. 1 Wait, Pr. 669; Mott v. Bank, 38 N. Y. 18. The execution was entirely regular, although some of the proceedings in the action previous to the final judgment were unnecessarily recited therein. The plaintiff is entitled, as a matter of right, to the return of that process by the present sheriff, stating his action by virtué thereof, and both orders should be affirmed, with costs of one appeal and disbursements. All concur.