#### Adolph Van Praag *et al.,*Resp’ts, *v.*James A. Flack, Sheriff, App’lt.

*(City Court of New York, General Term,*

*Filed March 10, 1891.)*

Sheriffs—Liability for failure to return execution.

In an action against a sheriff for failure to return an execution within the time required by law, the amount of the execution is the measure of damage, unless it appears that the execution debtor had no property out of which the debt could be collected. Where there appears to have been some property, and the sheriff does not undertake to show that it was of less value than the execution or exempt from levy and sale, a verdict for the amount of the execution will not be disturbed as against the weight of evidence.

This action was brought to recover from the defendant the sum of $350.63 upon a judgment recovered in this court by the plaintiffs, against one Frederick Schurtz, on March 21, 1890, upon which judgment an execution was issued and delivered on March 21, 1890, to the defendant, then sheriff of said city and county, against the property of said Schurtz, directing said sheriff to satisfy the said judgment out of the personal property of said Schurtz, etc., and to return said execution to the clerk of this court within sixty days after the receipt thereof by said sheriff, upon the ground that the said sheriff had failed to return the execution within sixty days,’ as required therein.

Upon the trial the following facts were admitted: The recovery of the judgment as above stated, and that an execution was issued thereon and delivered to the defendant on March 21,1890, for the sum of $350.63.

The defendant, in his answer, admits that more than sixty days, have elapsed since the delivery of the execution to him, and as a further and separate defense alleges that he delivered said execution to one of his general deputies, and, in substance, further alleges that his said deputy made a levy, and that the attorney for the plaintiff therein instructed said deputy to collect said judgment in monthly installments of fifty dollars each, and to hold said execution until the whole amount thereof was collected in full.

The action was brought before Justice Griegerich and a jury on the 9th day of December, 1890. Evidence was given on the part of the plaintiff, and also the defendant, as to the quantity and nature of the property in the possession of Schurtz, the defendant in - such judgment, at the date of the delivery of the execution to the sheriff, and also as to the facts whether or not the attorney for the plaintiff who issued the execution had directed or authorized the deputy to hold said execution that had been-delivered, and to collect the same in installments, and to hold and not return the same within the sixty days, as required by said execution.

After the testimony had been closed on each side, it was sub*465mitted to the jury under the charge of the trial justice, and the jury rendered their verdict in favor of the plaintiff for the sum of $361.88, the amount of the judgment and interest

A motion was made by the attorney of the defendant to have the verdict set aside, upon the ground that it was against the weight of evidence, and the law, and for a new trial, which motion was denied, and an order was entered denying said motion, from which judgment and order defendant appeals.

*George W.*Gallinger, for resp’ts ; *David*Tim, for app’lt.

McGown, J.

The only questions of fact in dispute herein, upon which it was necessary for the jury to pass, were as to whether there 'was any property in the possession of Schurtz, the defendant in the judgment, at the date of the receipt of the execution by the sheriff, subject to levy and sale under the execution, and as to whether the attorney of the plaintiffs had authorized or requested the deputy sheriff Williams not to return the execution within the time specified.

Evidence was introduced on each of the above questions on the part of the plaintiff and the defendant, and the trial justice in his charge to the jury directed their attention to each of the questions in dispute, and to the testimony of each of the witnesses who testified in relation thereto, and we think he fully and fairly presented the entire case to the jury. He also called the attention of the jury to the contradictory nature of the evidence. In fact, instructed the jury that if they believed the testimony adduced on the part of the defendant, that their verdict must be for the defendant, and that if they believed the testimony on the part of the plaintiff, then that their verdict must be for the plaintiff. Thus the jury necessarily had to pass upon the credibility of the several witnesses.

The jury had a right to credit the testimony of any of the witnesses, or to discredit their testimony unless corroborated. The statute has given an action to a creditor against a sheriff for not returning an execution, and the settled doctrine of the courts is, that where it has not been returned, he, the sheriff, is *prima facie*liable for the debt, but he may mitigate the damages by showing that the defendant had no property on which the judgment could be levied. See *Swezey*v. *Lott, Sheriff,*21 N. Y. 484.

There was evidence on the part of the plaintiff, and also of the defendant, that there was some property in the possession of Schurtz, the defendant in the judgment, on March 21, 1890, and the defendant herein did not undertake to prove that the property found on the premises of Schurtz was of less value than the execution, nor did he prove that such property was exempt from such levy and sale. As to whether the levy was actually made, the testimony of the defendant’s own witnesses is contradictory. The amount of the execution is the measure of damages, unless it appears that the defendant in the judgment had no property out of which the plaintiff herein could have collected the debt *Bowman*v. *Cornell, Sheriff.*39 Barb., 69.

*466And as to whether the defendant had no property on which the j adgment could be levied was a question of fact, to be determined by the jury upon the evidence. The jury passed upon all the questions of fact submitted to it, and found in favor of the plaintiff, and we do not find any good reason for disturbing their verdict, rendered upon a conflict of testimony, which it was the special province of the jury to decide. Nor do we think that the verdict was against the weight of evidence.

The verdict of a jury will only be disturbed when it is clearly against the weight of evidence, or where there has been some improper or illegal act on the part of the jury. The rulings of the trial justice we think were correct, and the" exceptions throughout are without merit

The judgment and order appealed from must be affirmed, with costs to the respondent.

Ehrlich, Ch. J., and Van Wyck, J., concur.