Cozine v. Walter
New York Court of Appeals
Appeal from, judgment of the General Term, of' the City Court of Brooklyn,, affirming a judgment in favor of plaintiff entered on a verdict and affirming an order denying a motion for a new trial. This was an. action against defendant as sheriff, of the county of Kings, for an alleged false return to- an execution against the person.
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Appeal from, judgment of the General Term, of' the City Court of Brooklyn,, affirming a judgment in favor of plaintiff entered on a verdict and affirming an order denying a motion for a new trial. This was an. action against defendant as sheriff, of the county of Kings, for an alleged false return to- an execution against the person. In an action brought by James Gibson against David, Rogers for an assault and battery, Rogers was held to bail, on an order of arrest at the commencement of the action, in §2,000. Plaintiff and Jeremiah Fielding were his sureties. Judgment was afterward rendered…
1Opinion of the CourtRapallo, J.
The return of the execution against Rogers “ not found ” subjected the plaintiff, his bail, to an action upon his undertaking, and was conclusive upon him in that action. If the return was false, the plaintiff had a right of action against the sheriff for the damages sustained by reason of such false return. (Bradley v. Bishop, 7 Wend., 352; Kidder v. Parlin, 7 Greenl., 80; McArthur v. Pease, 46 Barb., 423.)
In case of a recovery on the undertaking, and payment thereof, the plaintiff was entitled to recover of the sheriff the amount so paid. The plaintiff, instead of submitting to a recovery…
2Cases cited3 opinions
- Bradley v. BishopNew York Supreme Court · 1831
- Bank of Geneva v. ReynoldsNew York Supreme Court · 1860
- McArthur v. PeaseNew York Supreme Court · 1866
3Cited by1 opinion
- Sage v. Mayor of New YorkAppellate Division of the Supreme Court of the State of New York · 1896