(78 Hun, 583.)

#### BURRILL v. HOLLANDS, Sheriff.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

"Execution—Delivery to Sheriff—Leaving at Deputy’s Placf op Business. Leaving an execution at a butcher shop kept by a deputy sheriff, who was absent therefrom at the time, is not a delivery to the sheriff, since *516in such case a memorandum of the day, horn, and minute when he received it could not be indorsed thereon by the sheriff, as required by Oode Oiv. Proe. § 1363.

Appeal from Steuben county court.

Action by Allen M. Burrill against George Hollands. From a judgment affirming a judgment of a justice’s court in favor of plaintiff, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

F. H. Robinson, for appellant.

A. M. Burrill, in pro. per.

HAIGHT, J.

TMs action was brought to recover money alleged to have been collected by the defendant upon the plaintiff’s execution. It appears that the plaintiff and one Leroy Riddell had each obtained a judgment against one Harvey G. Lason; that each procured an execution to be issued upon his judgment, and delivered the same to the sheriff of the county, who, by virtue thereof, levied upon and sold personal property of Lason, and made thereon $30.20. Both plaintiff and Riddell claimed the money, and the only question to be determined in this case is as to which execution was first delivered to the sheriff.

Riddell testified that he got his execution on the night of December 28, 1892, and went to Deputy Sheriff Williams’ office; that he was not at home; and that the next morning he again went to his office, between 9 and 10 o’clock in the forenoon, and gave him the execution. Deputy Sheriff Williams, in his testimony, corroborates Riddell, and states that he received his execution not later than 10 o’clock in the forenoon of the 29th day of December, 1892. This evidence is not disputed. The plaintiff introduced his execution in evidence, from which it appears that it was dated December 28, 1892, and indorsed thereon as received December 29, 1892, 1 p. m., by the sheriff, per Williams, his deputy, and returned wholly unsatisfied February 24, 1893. ' He, however, testifies that Deputy Sheriff Williams is a butcher, and keeps a meat market at the village of Oanisteo, and that on the 28th of December, 1892, at about 12 o’clock noon, he went to Williams’ place of business, and inquired for him, and was informed by a man who worked in the market that Williams was not there; that thereupon he ‘left the execution there, at his place.” It does not appear whether he delivered it to the man who was working for Williams in the meat market, or whether he left it. upon the table, desk, or in what particular place it was deposited. Williams testified that-the execution was delivered to him December 29th, between 11 and 12 o’clock, by the plaintiff, and after the Riddell execution.

The sheriff to whom an execution is directed and delivered must, upon receipt thereof, indorse thereupon a memorandum of the day, hour, and minute, when he received it. Code Civ. Proc. § 1363. Upon the plaintiff’s execution, we find such an indorsement. It is, however, that it was received at 1 o’clock on December 29th.

*517His deputy says that .he received it between 11 and 12 o’clock of that day, but states that this was after the Eiddell execution had been delivered to him. It thus becomes important to determine whether there was an earlier delivery of the execution to the sheriff. This depends upon the testimony of the plaintiff as to what he did the day before. As we have seen, he took the execution, went to the meat market of Deputy Williams, found he was not there, and then left the execution “there, at his place.” Was this a delivery to the sheriff? If so, how could the sheriff perform his statutory duty of indorsing thereon the day, hour, and minute that it was delivered to him? The sheriff of the county is required to keep an office in some proper place in the city or village in which the county courts of the county are held, of which he shall file a notice in the office of the county clerk, and he shall keep the same open, except Sundays, and other holidays declared by law, from 8 o’clock in the morning until 9 o’clock in the evening; and every notice or other paper required to be served upon any sheriff may be served by leaving the same at the office designated by him in such notice, during the days and hours for which he is required to keep such office open. Laws 1892, c. 686, § 184. Canisteo was not the county seat, or the place where the office of the sheriff was established. The place where the execution was left was but a meat market or store kept by one of the sheriff’s deputies. A delivery of an execution to the deputy in person, doubtless, would have been, in contemplation of law, a delivery to the sheriff. He then could make the indorsement required by the statute. But the' leaving of it in some undescribed place in the meat market of one of his deputies is not a delivery to the sheriff. We-are therefore of the opinion that it appears from the undisputed evidence in the case that the Eiddell execution was first delivered to the sheriff, and that the verdict is against the evidence. The judgment of the county court and that of the justice should be reversed, with costs in this and the courts below. AE concur.