Opinion
May 2, 1906.
C.L. Andrus, for the appellant.
Wagner Fisher, for the respondent.
We agree with the learned justice of the Special Term that the defendant, having stipulated that Dickinson, as sheriff, be substituted as the party plaintiff in the action and an order having thereupon been made making such substitution and directing that the action be continued in his name as plaintiff, the defendant cannot now be heard to say that Dickinson, as sheriff, is not the proper plaintiff. That order, standing in full force as it does, is conclusive upon that question. ( Underhill v. Crawford, 29 Barb. 664; Smith v. Zalinski, 94 N.Y. 519; Gibson v. National Park Bank of N.Y., 98 id. 87; Greenwood v. Marvin, 111 id. 423, 440.)
But we may go further than this, as we think that the substitution of Dickinson as plaintiff was a proper one to be made and that the action may be continued in his name although his term of office has expired. The sheriff of a county is a public officer, and from time immemorial he has represented the executive power of the State within his county and executed the process of the courts. These functions come within the scope of his official duty.
Section 766 of the Code of Civil Procedure provides as follows: "Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver, or other trustee, appointed by virtue of a statute, his death or removal does not abate the action or special proceeding; but the same may be continued by his successor, who must, upon his application, or that of a party interested, be substituted for that purpose, by the order of the court, a copy of which must be annexed to the judgment-roll." While there is no statutory authority requiring or authorizing a sheriff to commence an action against a person who unlawfully takes from his possession chattels levied upon under lawful process, yet it is apparent that such an action was authorized by the common law.
In 25 American and English Encyclopædia of Law (2d ed. p. 713) it is said: "The duty on the part of the sheriff or constable to protect the property in his possession, and have it forthcoming, confers on him a special interest or property therein, and he may maintain the necessary actions to protect his special interest, such as replevin, trespass, or trover."
In Crocker on Sheriffs (3d ed. § 826) it is said: "When goods and chattels have been duly levied on or attached by an officer, under valid process against the owner thereof, or against one having an interest therein subject to levy under execution, or seizure under attachment, the officer holding such process thereby acquires a special property in such goods and chattels so levied on or attached, and may maintain an action against any one who interferes therewith, or injures them, or removes them, or converts them to his own use." The author cites in support of this proposition, among others, the cases of Barker v. Miller (6 Johns. 195); Lockwood v. Bull (1 Cow. 322); Earl v. Camp (16 Wend. 561); Dezell v. Odell (3 Hill, 215).
On the death of Smith, therefore, the action did not abate, and Dickinson, having been appointed successor of Smith on the latter's death, it was entirely proper, under these authorities, for the court to substitute him as plaintiff in the case. It is true that Dickinson's term of office as sheriff has expired and that now there is a new incumbent in the office. There may be a ground to ask the court for a further substitution, but as subdivision 4 of section 184 of the Code of Civil Procedure authorizes a sheriff whose term of office has expired to close up all mandates that he has begun to execute, that would hardly seem necessary in this case. This provision is but continuing a rule of the common law, that the sheriff who began an execution was required to end it, though his office had expired. (Mod. Cas. [6 Mod. Rep.] 297; Clerk v. Withers, 1 Salk. 323; 2 Ld. Raym. 1074. See, also, Code Civ. Proc. § 186.) More than this, it often happens that where an action is brought by one public officer it is allowed to be continued in his name after a successor has been appointed or elected. ( Manchester v. Herrington, 10 N.Y. 164; Board of Excise of Ontario County v. Garlinghouse, 45 id. 249; Griggs v. Griggs, 56 id. 504.)
That a sheriff's right to the exclusive possession of property levied upon is not impaired by his going out of office, nor his powers and duties in relation thereto in any manner changed, is expressly held in Rogers v. Darnaby (4 B. Mon. [Ky.] 238, 241).
If an action brought by a public officer were to abate upon the expiration of his term of office, all that would be required on the part of a defendant in order to escape liability would be to delay final judgment until the term of office of the plaintiff had expired. We think the authorities are ample to prevent that result in this case. The order appealed from should be affirmed, with costs.
All concurred, except PARKER, P.J., not voting.
Order affirmed, with costs.