McGuire v. Bausher

Full title: ANNIE McGUIRE, Appellant, v . WILLIAM H. BAUSHER, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 1, 1901

57 App. Div. 201 (N.Y. App. Div. 1901)

68 N.Y.S. 284

Opinion

January Term, 1901.

Archibald Foote Clark, for the appellant.

J.M. McGee, orally, for the respondent.

GOODRICH, P.J.:

On a former appeal in this action ( 52 App. Div. 276) we held that where the defendant as marshal had an execution in his hands and extended the judgment debtor's time for the payment of the judgment beyond the time fixed for the return of the execution, and without consultation with the plaintiff procured its renewal, he was liable for the damages sustained by the judgment creditor.

The evidence at the last trial showed that the plaintiff, on January 30, 1900, recovered a judgment in the Municipal Court for twenty-five dollars and fifty-seven cents, for wages as a domestic servant, against one Chrysler. By section 3221 of the Code of Civil Procedure, "no property of the defendant is exempt from levy and sale by virtue of an execution against property issued" upon such a judgment, and if the execution is returned unsatisfied, an execution against the person may be issued. Execution was issued to the defendant on February fifth, which was renewed through the procurement of the defendant on February twenty-fifth, and returned by him unsatisfied on March seventeenth. An execution against the person was issued to the defendant on March twentieth and returned not satisfied on April twenty-eighth.

It appeared by the defendant's testimony that he saw Chrysler only once, and that this was about two weeks after the issuing of the first execution, when Chrysler asked him to delay for a week, when he thought he would be "able to straighten the matter out," and the defendant assented. Subsequently he tried to see Chrysler but was unable to find him.

Mr. Clark, the plaintiff's attorney, testified that on February fifth, the day of the issuing of the execution, he saw "Mr. Chrysler in possession of more than enough property to satisfy the execution on that day." On cross-examination the fact appeared that Chrysler told Mr. Clark that the property belonged to him, and no motion was made to strike out the testimony.

This evidence, though slight, was sufficient to establish the plaintiff's damages by reason of the defendant's renewal of the execution.

The judgment must be reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.