Van Praag v. Flack

McGown, J. The only questions of fact in dispute herein, upon which it was necessary for the jury to pass, were as to whether there was any property in the possession of Schurtz, the defendant in the judgment, at the date of the receipt of the execution by the sheriff, subject to levy and sale under the execution, and as to whether the attorney of the plaintiffs had authorized or requested the deputy-sheriff, Williams, not to return the execution within the time specified. Evidence was introduced on each of the above questions on the part of the plaintiffs and the defendant, and the trial justice in his charge to the jury directed their attention to each of the questions in dispute, and to the testimony of each of the witnesses who testified in relation thereto, and we think he fully and fairly presented the entire case to the jury. He also called the attention of the jury to the contradictory nature of the evidence; in fact, instructed the jury that, if they believed the testimony adduced on the part of the defendant, their verdict must be for the defendant; and that if they believed the testimony on the part of the plaintiff, then their verdict must be for the plaintiff. Thus the jury necessarily had to pass upon the credibility of the several witnesses. The jury had a right to credit the testimony of any of the witnesses, or to discredit their testimony, unless corroborated. The statute has given an action to a creditor against a sheriff for not returning an execution, and the settled doctrine of the courts is that, where it has not been returned, he (the sheriff) is p rima facie liable for the. debt, but he may mitigate the damages, by showing that the defendant had no property on which the judgment could be levied. See Swezey v. Lott, 21 N. Y. 484. There was evidence on the part of the plaintiffs, and also of the defendant, that there was some property in the possession of Schurtz, the defendant in the judgment, on March 21, 1890; and the defendant herein did not undertake to prove that the property found on the premises of Schurtz was of less value than the execution, nor did he prove that such property was exempt from such levy and sale. As to whether the levy was, actually made, the testimony of the defendant’s own witnesses is contradictory. The amount of the execution is the measure of damages, unless it appears that the defendant in the judgment had no property out of which the plaintiffs herein could have collected the debt. Bowman v. Cornell, 39 Barb. 69. And as to whether the defendant had no property on which the judgment could be levied, was a question of fact, to be determined by the jury upon the evidence. The jury passed upon all the questions of fact submitted to it, and found in favor of the plaintiffs, and we do not find any good reason for disturbing their verdict, rendered upon a conflict of testimony which it was the special province of the jury to decide; nor do we think that the verdict was against the weight of evidence. The verdict of a jury will only be disturbed when it is clearly against the weight of evidence, or where there has been some improper or illegal act on the part of the jury. The rulings of the trial justice we think were correct, and the exceptions throughout are without merit. The judgment and order appealed from must be affirmed, with costs to the respondent. Alt concur.