Summary
In Kirschberg v. Coghlan, 62 Misc. 629, 115 N.Y.S. 1078 (Sup.Ct.App. Term 1909), on the basis of a statutory provision extending all provisions relating to the taking and restitution of property by sheriffs to the taking and restitution of property by marshals, the court held that the predecessor of Civil Practice Act § 51(1) applied to the marshal of the City of New York in a suit for wrongful levy under a warrant of attachment.
Summary of this case from Regan v. SullivanOpinion
April, 1909.
J. Leon Brandmarker, for respondent.
James T. Moore, for appellant.
This action was originally brought against William F. Coghlan as a marshal of the city of New York, to recover damages for a wrongful levy made under a warrant of attachment alleged to have been made by said Coghlan as marshal on September 27, 1906. The action was commenced on March 26, 1908. The only question involved upon this appeal is whether this action is barred by the Statute of Limitations. The pleadings and the proof show that, in making the levy, the defendant assumed to act as marshal and acted in good faith, believing that he had authority to act.
His act was, therefore, not merely colore officii but virtute officii. Under these circumstances, his act must be regarded not as a trespass, but as having been done in his official capacity. An action against a marshal for such an official act must be brought within a period of one year, or it is barred by the Statute of Limitations. Dennison v. Plumb, 18 Barb. 89. Section 304 of the Municipal Court Act provides that "All provisions of law in relation to the taking and restitution of property by sheriffs of counties shall apply to the taking and restitution of property by the said marshals, except that a marshal is not restricted in the performance of his duty as such, to the territorial limits of a county, when engaged in the service or execution of process or mandates, but is authorized to act within the limits of the city of New York."
Subdivision 1 of section 385 of the Code of Civil Procedure prescribes that "An action against a sheriff or a coroner, upon a liability incurred by him, by doing an act in his official capacity" must be commenced "within one year" after the cause of action has accrued. The acts complained of in this action were within the meaning of this statute, and an action against the marshal for his official act was within the one year period of limitation.
The judgment is reversed and the complaint is dismissed, with costs to the appellant.
GILDERSLEEVE and LEHMAN, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant.