#### Mary E. Craft, Plaintiff, *v.*I. Wheeler Brandow, Late Sheriff of Greene County, Defendant.

(Supreme Court, Greene Special Term,

July, 1898.)

Action.' for a false return — When it is not a defense to the sheriff that the judgment creditor refused to indemnify him against other claims — Demurrer.

In ah action for a false return upon execution, a paragraph of the sheriff’s answer, consisting of new matter, and alleging that the plaintiff judgment creditor failed and, on demand, refused to- give the sheriff a bond of indemnity against any claim by any person upon the chattels claimed to belong to the judgment debtors, when unaccompanied by any allegation that there has been a determina*307tion by a jury as to the title of the chattels or that they were not in the possession of the judgment debtors, or that i"t was not clear that they belonged to such debtors, presents no defense and is demurrable.

Demubbeb by tbe plaintiff to a portion of tbe answer of the defendant in an action for alleged damages by reason of defendant’s returning an execution *nulla bona,*when it is alleged, that the defendants named in the execution had personal property from which the execution could have been collected.

Addison C. Griswold, for plaintiff.

Egbert Palmer, for defendant.

Chase, J.

The plaintiff alleges that she recovered a judgment on the 3d day of December, 1896, against one Jacob Craft and Lucinda Graft for the sum of $290.93 damages and costs, that the judgment-roll was duly filed and said judgment duly docketed in the office of the clerk of the county of Greene on that day. That on the 8th day of January, 189 Y, an execution was duly issued on said judgment to the defendant, then sheriff of the county of Greene. The execution and the indorsements thereon were in the usual form, as provided by the Code of Civil Procedure. The complaint sets forth two causes of action. , By the first cause of action the plaintiff alleges that the defendant by virtue of such execution seized and took into his possession divers goods, chattels and personal property of the judgment debtors, more than sufficient to satisfy said judgment, but that the said defendant contriving and wrongfully intending to injure, prejudice and aggrieve the plaintiff and deprive her of the money represented by said execution, returned said execution uncollected.

The second cause of action alleges that the judgment debtors had divers goods, chattels and personal property, in the county of Greene, from which said execution could and ought to have been collected, but that the said defendant, contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the plaintiff, and deprive her of the money represented by said execution, returned said execution uncollected. Judgment is demanded for the amount of said execution with costs.

The defendant by his answer admits that he was, at the times alleged, sheriff of the county of Greene, and that the execution *308was issued to him as stated in the complaint, but denies any knowledge or information sufficient to form a belief as to the recovery of the judgment and of docketing the same, and then denies each and every other allegation of the complaint. He also specifically denies that the judgment debtors or either of them had any goods, chattels, personal or other property from which said execution could have been collected. The answer then contains a paragraph as follows:

“ Sixth. That said plaintiff, Mary E. Craft, and her attorney failed, refused, and neglected to furnish, provide, and deliver said defendant a bond of indemnity against any claim or claims, by any person or persons, to any goods, chattels, and property claimed or alleged to belong to said Jacob Craft, and Lucinda Craft, or either of them, during the time or times mentioned in said complaint, although repeatedly requested, required and demanded so to do, by said defendant, and after- divers and repeated promises and agreements by plaintiff and her said attorney so to do.”

The sixth paragraph of the answer, although not specifically stated as a "defense is not a denial, but consists of new matter and to such new matter and defense, the "plaintiff demurs on the ground that it is insufficient in law on the face thereof to constitute a defense.

An affirmative defense set up in an answer, is to be treated as a separate plea, and upon demurrer thereto, defendant is not entitled to the benefit of denials made in another part of the answer unless- incorporated by reference and made a part of the affirmative defense. Douglass v. Phenix Insurance Co., 138 N. Y. 209. Abbott’s Trial Brief on Pleadings, 15.

Unless the, allegations contained in the sixth paragraph of the answer that I have quoted, if true, are sufficient to defeat the entire cause, or causes of action, the demurrer must be sustained.

. A sheriff is a public officer. He is bound to exercise reasonable skill and care in the performance of his duties, and for a failure to discharge his duties with reasonable skill and «care, he is liable for damages resulting from such failure to one specially interested in the discharge of the duties. Code Civ. Pro., § 102; Olmsted v. Dennis, 77 N. Y. 378; Am. & Eng. Enc. of L., vol. 22, p. 529; Crocker on Sheriff’s (3d ed.), § 287.

When an execution is issued to a sheriff it is his duty to levy upon property in the possession of the judgment debtor, if it is used by such judgment debtor and claimed as his own. Where *309a claim is made to such property by another, the sheriff should ■determine in the best manner he can whose it is, and whether he should release it, or sell. If in such case the plaintiff tender him an ample bond of indemnity against any claim it would be his duty to proceed to sell, .unless he chooses rather to incur .the risk of proving the property not in the defendant in any action that the plaintiff may bring against him for not selling.

Where the property is not. in the possession of the defendant and it is not clear that it belongs to him, the sheriff need not make a levy unless he has tendered to him, by the plaintiff, the, most .ample indemnity. Crocker on Sheriffs (3d ed.j, § 464.

The provisions of the Code of Civil Procedure, relating to the ■sheriff’s calling a jury to try the title to personal property, all relate to a claim of title to property *after a levy.*If the sheriff actually makes a levy upon personal property under an execution and thereafter such property.is claimed by or in behalf of another person as his property, the sheriff may in his discretion, impanel a jury to try the validity of the claim. Code Civ. Pro., §'§ 1418 and 1419.

If the jury find that, the property belongs to the claimant the sheriff may relinquish the levy unless the judgment creditor gives him an undertaking as provided by section 1419 of the Code of 'Civil Procedure. In case the plaintiff in the execution fails to give such undertaking the determination of the jury is a complete ■defense in any action as between the plaintiff in the execution and the sheriff to a recovery for a false return. The sheriff may in ■every instance show that the defendants in the execution had no goods, chattels or other property from which the execution could be made and a finding to that effect would be a complete defense.

There are no facts stated in the defense set up in the answer showing that there has been a determination of a jury in regard to the title of the personal property referred to in the complaint, neither are there any facts stated in the answer showing that the property referred to in the complaint was not in the possession of the defendants, or that it was not clear that such property belonged to the defendants. The mere demand of the sheriff for a bond, and the failure on the part of the judgment creditor to give.such bond of indemnity, is not a defense in an action for a false return. If a bond had been in fact given without a determination of a jury it would be valid and enforcible. Chamberlain v. Beller, 18 N. Y. 115. A promise to give a bond without showing some right to *310demand, the same, cannot aid in making the allegations referred to a defense.

The demurrer is sustained, with costs, the defendant to have leave to. file'an amended answer within twenty days on payment of costs of demurrer to he taxed.

Ordered accordingly. -