Bortel v. Ostrander , 15 How. Pr. 572 ( 1857 )

By the court—Gould, Justice.

All the facts in this case are admitted, and are as follows: On the 17th of December, 1855, the defendant (a constable) received an execution from a justice of the peace, against the property of the present plaintiff ; which execution was returnable in sixty days, (February 13th, 1856.) On the 21st of December, 1855, the constable under said execution made a levy on two cows; on the 29th of December, 1855, he sold one cow, for a sum which exceeded the execution and his fees, by $10.57. At some time prior to the day of trial of this suit, the constable paid to the plaintiff in that execution, the amount due to him. On the 4th day of January, 1856, this present plaintiff commenced against the constable this suit, for the $10.57 surplus moneys, on the sale of the cow. The justice gave judgment for the defendant ; which judgment the county court affirmed, (on appeal, by plaintiff,) on the ground that the action was prematurely brought, as the return day of the execution had not arrived, nor had the plaintiff made any demand of the surplus moneys. From that judgment of the county court the plaintiff appeals to this court.

The cases cited "by plaintiff, are all instances where sheriffs having executions of courts of record, had allowed the return day to pass, and had neither paid the moneys into court, (as in such courts they may,) nor paid them to the party whose they were. There indeed, there can he no doubt that a demand was not necessary before suit, as the officer by doing his duty and paying the money into court, could have discharged himself from all liability. But here the case is entirely different. The justice could not receive this money: nor could any one but the plaintiff. When was the constable, (where no demand was made on him,) bound to pay it ? By 2 Revised Statutes, (4th ed.,) p. 448, § 131, he must return the execution, pay debt, &c., to justice, “ returning the overplus,” to the defendant in the'execution. This “returning,” does not precede the return of the execution, but follows it; and for the return of the execution he has till the return day; until which day, even though he has collected the money, he is not obliged to make his return. To be sure, in this case, he actually was very prompt in doing his duty, and did have the execution satisfied before this trial. Though it does not appear anywhere in the case, that the execution was actually returned before the. trial of this cause. I can see no possible ground of accusing the officer of any actual neglect of duty; and I fully concur with both county court and justice, in saying that, where the return day was not past, and no demand of the surplus moneys had been made, the plaintiff’s action was prematurely brought.

County court judgment affirmed.

Rote.—In the case of Vence agt. Vence, ante, page 491, the order was appealed from, and the appeal argued at the'May general term, 1858, at Elmira, before Justices Gray, Mason, Balcom and Campbell, and the order affirmed.