Montgomery v. Odell , 73 Hun 424 ( 1893 )

HARDIN, P. J.

This action was brought by an officer in his-official capacity, and no execution can be issued upon a judgment recovered against him in his official capacity. Section 1931, Code-Civil Proc. Such a judgment as has been entered in this action may be collected of the town for which the plaintiff, as overseer, acts. Thayer v. Lewis, 4 Denio, 273; Avery v. Slack, 19 Wend. 50; People v. Board of Sup’rs, 12 How. Pr. 50. . The money deposited with the county treasurer was placed there by the informers. They are .not plaintiffs in the action. No judgment has been rendered against them. The money needed to indemnify the town against any loss it may sustain by reason of being obliged to pay any judgment rendered in tMs action may be claimed by the town, or the officer in its behalf. Such portion of the money as shall not be needed to indemnify the town may be claimed by the persons making, -the deposit. In those. controversies the defendant has no vested interest. Nothing is shown by the papers presented upon the motion to indicate that the defendant has not a perfect remedy for the recovery of the .costs awarded to him by pursuing the usual methods to enforce judgments in such a case as this. These views, together with those suggested in the opinion of PARKER, J., at special térm, lead me to advise an affirmance of the order. Order affirmed, with $10 costs and disbursements.

MERWEN, J., concurs. MARTIN, J., not voting.