#### JOSEPH J. O’DONOHUE and JAMES McGOVERN, Respondents, *v.*ZACHARIAH E. SIMMONS, Appellant.

*Bond of indemnity to a sheriff*— what *is evidence of the exercise by the sheriff of hi» judgment in making a levy.*

This action was brought against the sureties *on*a bond of indemnity given to the-sheriff of New York .to protect him, and all persons assisting him, from any damages that might accrue to him of them from the levying, attaching and making sale, under and by virtue of an execution then in the sheriff’s hands, of all or any personal property which he or they should or might judge belonged to the judgment debtor. Upon the trial the defendant’s counsel requested the court to charge that if neither the sheriff, nor any of Ms deputies, judged that the property taken under the execution was owned by the judgment debtor, then the defendant was entitled to a verdict.

*Held,*that the court erred in refusing so to charge.

That the mere fact that the levy was made, was not to be construed when an issue was created in regard to it, as evidence of the exercise of the judgment required by the bond. (Davis, P. J., dissenting.)

Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

*11. M. Whitehead,*for the appellant.

*James M. Smith,*for the respondents.

Brady, J.:

This action was brought by the plaintiffs upon a bond of indemnity executed by the defendant and one Michael S. Purcell (since deceased), to the plaintiffs’ assignor, James O’Brien, then sheriff of the city and county of New York.

The case is here for the second time on appeal, and several of the questions which are now presented are kindred to those already passed upon on the first appeal, the result of which is reported in *SI*Hun, 267. It is not at all improbable that a consideration of all the other exceptions in the case would result favorably to the respondents, but it is not deemed necessary or advisable to consider them, for the reason that one exception appears to be fatal to the *332maintenance of the judgment. The bond is in the usual form of a bond of indemnity, and provides for protection to the sheriff, and all persons assisting him, from any damages that might accrue to him or them for levying, attaching and making sale, under and by virtue of the execution, of all or any personal property which he or they should or might judge belonged to the judgment debtor named.

The defendant’s counsel requested the court to charge that if neither the sheriff nor any of his deputies judged the property taken under the execution, in reference to which the indemnity applied, was owned by the judgment debtor, then the defendant was entitled to a verdict. The court refused so to charge, and an exception was duly taken. What was said on that subject, if anything otherwise, does not appear, inasmuch as the charge is not given in the record. As said in the case of *Clark*v. *Woodruff*(83 N. Y., 525): “It is never the purpose of these indemnities to make the obligors responsible for trespass which they do not direct or authorize. We should not yield to such a construction. The mischiefs resulting would be very great, not only to the parties and to the. public, but to the officers themselves.” And in the same case in the Supreme Court (18 Hun, 423), it was said : “It can hardly be supposed that the parties who executed the bond intended to create a roving commission by which the plaintiff would be at liberty to seize, by way of experiment, any property which he might even judge to belong to others, and rely upon such bond for protection against loss.”

The refusal of the judge to charge the proposition stated, necessarily results in a declaration of a converse proposition, namely, that the defendant would be responsible if property should be taken by the sheriff, which neither he nor his deputies judged to be the property of the judgment debtor, and thus would sanction the seizure of property in the language of *Clark*v. *Woodruff (supra),*by way of experiment. The mere fact of the levy is not to be construed, when an issue is created in regard to it, as the exercise of judgment or an act in conformity to the bond. A jury may be called upon ■ to determine whether the levy was made within the spirit of the bond itself, which was designed to secure the appropriation of the property of the debtor, if, in the judgment of the officer intrusted *333with the execution of the process, it was proper to levy upon, and thus to secure its appropriation to the payment of the judgment.

It is no answer to this proposition that there was no conflicting evidence on the subject of the levy. It may be said that except from the mere act of levying, there is no evidence that the property was judged to belong to the judgment debtor by the persons who made the levy. At all events, as already suggested, the defendant was entitled to a submission of the question to the jury, and which was rejected, as we have seen, whether the act of the sheriff, upon which his liability rested, was done in conformity to the bond.

For these reasons the judgment should be reversed and a new trial ordered.

Daniels, J., concurred.

Davis, P. J.

(dissenting):

The official act of levying property under an execution was sufficient *prmiafaeie*evidence that the officer “judged” it to belong to the defendant in the execution. There was nothing in the case rebutting or impairing this *prima faeie*evidence, and therefore no occasion to make the charge requested. If there had been a controversy by evidence so as to make an issue on the question whether or not the officer *“ judged*” the property levied on to be that of the execution defendant, then the charge requested would have been proper, and its refusal fatal. Otherwise it was not error to decline to charge at all on that question.

I dissent from the conclusion that on the ground considered in the opinion of Brady, J., there should be a reversal and new trial.

Judgment reversed, new trial ordered, costs to abide event.