Robinson v. Brennan

Davis, P. J. : ■ This action, was brought for an alleged false return, made on two executions issued out of the Court of Common Pleas, upon a judgment recovered in the Marine Comt and duly docketed in the former court. These executions were not strictly regular in all respects, but were, nevertheless, not void. It was the duty of the sheriff, therefore, to execute them. He could not avail himself of any of the defects alleged upon the trial, if they existed. These executions were both issued by the attorney of record, of the plaintiff, and he had full authority to issue the same. Subsequently, and while the executions were in the hands of the sheriff, the plaintiff therein assigned the judgments to the present plaintiff, by certain instruments of assignment, which were produced and read on the trial. There was no evidence given to show that notice of these assignments was ever given to the sheriff or his deputy. The attorney who issued the executions continued to act in respect to them by giving directions; and it was testified to by three of the witnesses on the trial that he gave directions that these executions should be returned milla tona, and that the money which had been received at the sale of the defendant’s property, should be applied on a subsequent execution in favor of one Gallagher, against the same defendant, upon which the attorney receipted money as collected on that execution, and as attorney for Gallagher. The testimony given by the witnesses on that subject does not seem to have been contradicted. The conduct of the attorney in the case appears to have been fraudulent as between himself and the present plaintiff, the assignee of the judgment; and while there is no clear evidence on the subject in this case, there are certainly some reasons to suspect collusion between the attorney and the auctioneer and deputy sheriff. There was not, however, sufficiently definite or explicit evidence on that subject to justify the court in submitting the question to the jury. The power of the attorney over an execution is well settled; he may give such directions with respect to the conduct of the sheriff or deputy as the plaintiff himself could; and his directions in regard to the return of the execution are binding upon the plaintiff. No notice having been given to the sheriff of the rights of the [370] assignee, be occupied tbe same relation in respect to tbe execution as tbe plaintiff of record would bave done. It seems to be extremely well settled by tbe authorities of tbis State, that no action will lie against a sheriff for any act done by bis deputies under or hi relation to tbe execution, in obedience to tbe directions of tbe attorney who issued it. (Mickels v. Hart, 1 Denio, 548 ; Sheldon v. Payne, 7 N. Y., 453; Acker v. Ledyard, 8 Barb., 514; Gorham v. Gale, 7 Cow., 739.) In respect to tbe appeal from tbe order, we are of opinion that tbe motion should bave been granted, under tbe evidence in tbe case, on tbe ground of excessive damages; but it is not necessary to consider that question. It may well be that tbe plaintiff, on a new trial, will be able to show tbe alleged collusion between tbe attorney of record and tbe attorney who made tbe return, in such manner as to charge tbe sheriff with tbe whole amount now recovered ; but as tbe case-now stands we think there should bave been no recovery. Tbe order and judgment should be reversed, and a new trial ordered, with costs to abide event. Brady and Daniels, JJ., concurred. Judgment and order reversed, new trial granted, with costs to abide event.