Dunford v. Weaver

Full title: GEORGE DUNFORD, Respondent, v . FREDERICK G. WEAVER, Sheriff, etc.…

Court: Court of Appeals of the State of New York

Date published: Mar 8, 1881

84 N.Y. 445 (N.Y. 1881)

Opinion

Argued February 10, 1881

Decided March 8, 1881

C.D. Adams for appellant.

S.M. Lindsley for respondent.

FOLGER, Ch. J.

1st. It is contended by the defendant that there was not a service of the summons in this case, while the debtor was off the jail liberties. Whatever was done toward a service was done while the debtor was beyond the liberties. The act relied upon by the plaintiff as a service, was the delivery of the summons to a deputy and clerk of the defendant at a room, which was, in fact, the office of the defendant as sheriff. The Code, section 426, subdivision 3, makes that a good service, if that room was the office of the defendant as sheriff, in view of law. It is the duty of the sheriff to keep an office in the city or village in which the County Courts are held and that he shall notify of the place by filing notice in the county clerk's office. (2 R.S. 285, § 55.) No proof was given on the trial that the defendant had filed a notice; but, as above intimated, he did, in fact, in that room, keep an office that met the view of the statute. Thus it appeared that he, in part, did the duty the law put upon him. He kept an office. If the other part of the duty was left undone, that would not undo that which he had done. There was still the office kept as bidden by the statute. Had it been shown that he had filed a notice of some other room or place, as his office under the statute, it might well be said that the room at which the summons was left was not the office. But keeping that room as his office, he cannot, by omitting to file notice thereof, debar a suitor of his right to serve a summons upon him by leaving it there. That would be to take advantage of his own breach of duty. The filing of notice is not needed or required to make the room the office. It is to give the public to know that it is the office. It is made the office by the act of the sheriff. The notice is but the making known of the act. And the omission of notice does not undo the act, or shield the sheriff from the effect of it. We think that the summons was shown to have been lawfully served.

Besides that, the bringing of the notice to the General Term cured the omission at the trial, if there was one. To sustain a judgment, an omission in proof may be supplied on appeal, if matter of record will do it that cannot be answered or changed.

2d. It is contended that the decree of the surrogate was void for want of jurisdiction. And first, it is said that there was no power to charge the administrator personally with the auditor's fees, and that they must be paid out of the estate. So, indeed, is the provision of the Revised Statutes (2d vol. 94, § 64), if that stood alone. That section gives authority to appoint auditors and to pay them out of the estate. But there is another provision of statute enabling a charge of their fees elsewhere. The Laws of 1867 (chap. 782, § 8) provide that an administrator, compelled to render an account, may be charged personally with the costs of the proceeding. The sum of $150, charged against the administrator personally, toward the costs of the proceeding, falls within the same statutory provision.

3d. It is claimed that the process by which the debtor was arrested is void. The particular in which it is said to be so is that collection could be made only by a precept, under 2 R.S. 535, § 4, and that it could not issue until proof by affidavit of a personal demand of the money and a refusal to pay it. The process in the case in hand recites that the Surrogate's Court has been informed that a personal demand has been made and refusal given. If the process is erroneous, it is voidable only, and not void, and such defects the sheriff cannot set up. ( Cable v. Cooper, 15 Johns. 155.) But where a surrogate has made a decree for the payment of money by an administrator, he may enforce the performance of it by attachment. (2 R.S. 221, § 6, subd. 4; Seaman v. Duryea, 11 N.Y. 324.) It is not needed that the process to attach should recite all the facts and proceedings necessary to confer jurisdiction; as it is enough if on its face it appears to have been issued in a proceeding in which the surrogate had jurisdiction, and states in substance the cause for arrest and specifies the act or duty to be performed. (Id.)

4th. The attachment issued by the surrogate directed the collection of interest on the decretal sums named in it. It is urged that the surrogate had no power to direct the collection of interest. If it be granted that he had not, the insertion in the attachment of a direction to collect interest did not vitiate the process in toto. The commands to collect the principal sums and the interest on them were easily separable, and the error would not render the process void. When the sheriff is sued for an escape from custody on that process the question is changed, and it is what may the plaintiff recover of the defendant? Every judgment shall bear interest from the time of perfecting the same. (Laws of 1844, p. 508, chap. 324, § 1; old Code, § 310; new Code, § 1211.) This means, every determination of a court awarding a sum of money to one party, to be paid by another party. By virtue of those provisions of law the decree of the surrogate bore interest from its date. The parties interested in it were entitled to have from the debtor the sums awarded to them and interest thereon. If such debtor, in custody of the sheriff, goes beyond the liberties of the jail without the assent of the party, the sheriff is answerable to the extent of the damages sustained by the party. (New Code, § 158.) Prima facie, that extent is what the party could have exacted of the debtor; and that is the sum awarded, with interest. If the plaintiff had cause of action against the defendant, he was entitled to the verdict for the principal sum and interest.

5th. It is further urged that the complaint avers that the defendant wrongfully permitted the debtor to escape and go at large out of his custody. There was no proof that the defendant was assenting to or knowing of the going off the liberties by the debtor. The proof is that the defendant was away from the liberties, and that the transgression of the debtor was but little more than momentary, for a short distance, and without the knowledge of the sheriff. It is now urged that the complaint is for a voluntary escape, which the proofs do not make out, and that the motion for a nonsuit, based upon that ground, should have been granted. If the old rules of pleading and the old distinctions of causes and kind of action still maintained, this might be so. But the former have been for some time supplanted, and the last Code brings into one phrase all causes of action for an escape. Its language is: "Where a prisoner, in a sheriff's custody, goes or is at large beyond the liberties of the jail, without the assent of the party at whose instance he is in custody, the sheriff is answerable therefor in an action against him." (§ 158.) The cause of action is simply the going or being at large beyond the liberties. Whether negligently or voluntarily on the part of the sheriff matters not, either with the cause of action or the form of it. The existence of that fact gives the right to an action. If the complaint fully apprises the defendant that such is the cause of action relied upon, it is enough. It does here.

6th. It is claimed that the fact of the insolvency of the debtor is a defense to the sheriff. This was so at common law, perhaps. ( Patterson v. Westervelt, 17 Wend. 543.) Here, again, we are under the Code, § 158, subd. 2: "If the prisoner was in custody by virtue of any other mandate, after judgment, the sheriff is answerable for the debt, damages or sum of money for which the prisoner was committed." The facts of the case bring it within this clause.

7th. The debtor gave a bond as administrator. Parker was one of the sureties. It seems that a creditor of the estate got judgment on the bond against Parker. Parker furnished money to his counsel, with the understanding and for the purpose of buying the claims against the administrator, and on the payment of the money the claims were assigned to the plaintiff in this action. On that state of facts the defendant moved for a nonsuit, on the ground that the claim was extinguished; and we think that the nonsuit was properly refused. The defendant also requested the court to leave it to the jury whether Parker paid the claims of any of them before they were assigned, and to direct the jury that if they so found, that as to such claims the decree was satisfied. We think that the testimony is too plainly, to the result, that the purpose and action of Parker was to obtain an assignment of the claims, and not to pay them, to warrant a verdict otherwise.

8th. Two of the attachments were issued and two arrests made before the new Code. It is claimed that it does not apply to those cases. But the issuing of process and the arrests were not the cause of action. The going off the liberties gave the right of action. That arose after the new Code.

This is a hard case for the defendant. We would not have been sorry had we found that he had a legal defense to this action, and a point well taken for a new trial. We have found none.

The judgment should be affirmed.

All concur, except RAPALLO, J., absent.

Judgment affirmed.