Opinion
January Term, 1900.
George B. Stoddart, for the appellant.
Abraham H. Dailey, for the respondent.
If the facts are correctly stated in the motion papers of the plaintiff, the sheriff of Nassau county was not justified in refusing to receive and serve the warrant of attachment in this action. According to the allegations in those papers, the attachment, which was to be levied upon property in the village of Sea Cliff, was offered to the sheriff in the same village between three and four o'clock on the afternoon of Saturday, September 2, 1899, when the sheriff declined to receive the same, saying that he would not receive it but would either go himself or send a deputy to see one of the plaintiff's attorneys later in the day, which promise, however, he failed to keep.
Where attachment papers are placed in the hands of the sheriff, the law expressly requires that he "must immediately execute the warrant." (Code Civ. Proc. § 644.) The general rule is that a sheriff is responsible for not reasonably executing such process as is lawfully tendered to him for service. ( Whitney v. Butterfield, 13 Cal. 335, 340.) It was held in the case cited that a statutory command to execute process "without delay" does not mean that the sheriff must needs lay aside all other business the instant he receives the process, and proceed to execute it, in the absence of special reasons for urgency or haste. The same is true of the direction in section 644 of the Code, that the sheriff shall "immediately" execute the warrant of attachment. But it does mean that the sheriff is bound to use all reasonable endeavors seasonably to execute the process. ( Hinman v. Borden, 10 Wend. 367.)
This duty may include the exercise of his official functions after nightfall ( Phillips v. Ronald, 3 Bush [Ky.], 244); and hence after the sheriff's regular office hours. The measure of the sheriff's dnty in such cases is his obligation to act reasonably ( Tucker v. Bradley, 15 Conn. 46, 49); and it seems clearly unreasonable to refuse to receive and execute process under the circumstances alleged by the plaintiff to have existed in the case at bar.
The County Law requires every sheriff to keep an office in some proper place in the city or village in which the County Courts of his county are held, and prescribes that it shall be kept open between certain hours, except on Sundays and other days and half days declared by law to be holidays or half holidays. (Laws of 1892, chap. 686, § 184, as amd. by Laws of 1895, chaps. 150, 718.) The section cited provides that every notice or other paper required to be served on the sheriff may be served, with an effect equal to that of personal service, by leaving the same at such office. There is nothing in the County Law, however, nor in any other statute which has been brought to our attention, that compels litigants always to resort to the office of the sheriff in order to set the sheriff in motion for the execution of a mandate directed to that officer. The provision of the law which relieves him from keeping his office open on a half holiday does not deprive him of his official powers or relieve him of the obligation to perform any of his official duties on Saturday afternoon which are capable of being exercised or discharged outside of his office. The Half Holiday Law relates only to the transaction of business in public offices. ( People ex rel. Fulton v. Supervisors of Oswego, 50 Hun, 105.)
This proceeding to punish the sheriff for contempt in refusing to receive and execute the plaintiff's warrant of attachment, was instituted by an order to show cause under subdivision 1 of section 2269 of the Code of Civil Procedure. Upon the return to the order the sheriff submitted affidavits to the court denying that the warrant of attachment had ever been offered to him. These affidavits raised an issue of fact as to the alleged misconduct, which does not appear to have been decided by the learned court at Special Term. It is only where it is determined that the accused has committed the offense charged, and that it was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the complaining party that a final order for punishment can be made. (Code Civ. Proc. § 2281.) In the record before us there is no such adjudication. The order appealed from does not determine that the sheriff has committed the offense charged, or that such offense was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the plaintiff. It does not even contain any recitals from which such facts might be inferred. An adjudication of this character is essential as the basis for the imposition of punishment under section 14 of the Code of Civil Procedure relating to civil contempts. ( Mahon v. Mahon, 50 N.Y. Super. Ct. 92, 95; Fischer v. Raab, 81 N.Y. 235; First National Bank v. Fitzpatrick, 80 Hun, 75.) The cases cited show that an adjudication to the effect that the alleged misconduct has been committed to the prejudice of the complaining party, is necessary to sustain such an order as that under review. That foundation being absent here, we are compelled to reverse the order.
All concurred.
Order reversed, without costs.