Summary
interpreting N.Y.C.P.A. § 51, the predecessor of CPLR § 215
Summary of this case from Taylor v. MayoneOpinion
Argued January 19
Decided January 24, 1871
T. More, for the appellant.
Alexander Cumming, for the respondents.
A deputy sheriff is entitled, in respect to liabilities incurred by the doing of an act in his official capacity, to the protection of the short statute of limitations contained in subdivision 1 of section 92 of the Code.
He is a public officer required by statute to take an oath of office (1 Stat. at Large, 352, § 74), and comes under the general denomination of "a sheriff," and can claim the benefit of statutes regulating actions against sheriffs.
The taking by a deputy sheriff, by virtue of an attachment, of property supposed to be the property of the debtor, and the sale of that property under execution, to satisfy the judgment in the action, are official acts, and if it turns out that the property did not belong to the debtor, and that the deputy sheriff has thereby incurred a liability to the true owner, it is a liability incurred by the doing of an official act.
In the case of a sheriff, it was formerly held by the Supreme Court, that such an act being a trespass it was not official, and that in such a case the sheriff could not avail himself of the short statute of limitations. (19 Wend., 283; 4 Hill, 572.) That the statute only covered cases in which the party injured could resort to the official bond of the officer, and that the sureties would not be liable for a trespass committed by him. But it was afterward held by this court in The People v. Schuyler (4 Comst., 173), that such an act was official, and that the sheriff's sureties were liable therefor. (See also 18 Barb., 89.)
The act being official when done by the sheriff, it must be equally so when done by a deputy sheriff. In both cases the officer is assuming to perform the duties of his office, and if in point of fact he makes a mistake, and seizes the property of the wrong person, there is no reason why that circumstance should deprive the act of its official character in the case of a deputy sheriff, if it does not have that effect in the case of a sheriff.
The judgment should be reversed, with costs.
All the judges concurring, judgment reversed.