Statement of case.

debt, amounting to $2,316.43. Davidson received said amount from McDowell, Pierce & Co., but failed to make deposit thereof as directed, whereupon, by order of February 12, 1886, Davidson was adjudged to be in contempt, was fined in an amount equal to the sum received by him under the attachment, and a commitment was issued against him, but " on or about February eighth " he fled the jurisdiction of the court and has since remained a fugitive. Dawson duly appeared in the action in which said warrant of attachment was issued. The issues were tried in October, 1886, and resulted in a judgment in favor of said plaintiffs for $2,452.86. Davidson left a deputy authorized to transact his unfinished business, and in November, 1886, an execution was issued on the judgment, which was returned wholly unsatisfied. Subsequent to the return of the execution Dawson paid to plaintiffs the difference between the amount due on the judgment, with interest, etc., and the amount received by Davidson from McDowell, Pierce & Co. In November, 1887, the plaintiffs procured an order requiring certain alleged debtors of Dawson to appear and be examined in proceedings supplementary to said execu tion, whereupon Dawson presented to the court his petition praying that said proceedings be vacated; that Davidson s aforesaid deputy be ordered to amend his return to said execu tion, and that the aforesaid judgment be canceled of record.

The petition was granted and an order entered directing an amendment of the return so as to show the execution to be satisfied, directing the clerk to mark the judgment satisfied, and vacating the supplementary proceedings.

Henry D. Hotchkiss for appenants. Wilson & Co. are not liable for the embezzlement by the sheriff of the moneys attached by him. (Shepard v. Rowe, 14 Wend. 260; Ladd v. Blunt, 4 Mass. 403; Cohens v. Virginia, 6 Wheat. 399.) By suing out the attachment and causing Dawson's property to be taken thereunder, Wilson &.Co. merely called to their aid the process which the law provided for them, and in no way have they been guilty of any misuse of such process.

Statement of case.

Manhattan Co. v. Laimbeer, 16 Cent. Rep. 329; Story on Bailments, § 624; The Three Friends, 4 Rob. Adm. 268; The Young Mechanic, 2 Curt. 404; The Raleigh, 2 Hughes, 44; Goddard v. Perkins, 9 N. H. 488; Foulks v. Pegg, 6 Nev. 136; Neil v. Kenney, 11 Ohio, 68; The Flavilla, 17 Fed. Rep. 399.) There is a marked distinction between the position of an attaching creditor and that of an execution creditor. (Drake on Attachments [6th ed.] §§ 5, 228; Willing v. Bleeker, 2 Serg. & Raw. 221-224; Ex parte Foster, 2 Story Rep. 148.) Wilson & Co. are not chargeable with the act of Davidson on any theory of agency. (Hall v. Waterbury, 5 Abb. N. C. 374; Kerr v. Mount, 28 N. Y. 659; Raney v. Weed, 3 Sandf. 577; Welsh v. Cochran, 63 N. Y. 184.) Where property is taken or held on interlocutory process, or for a purpose not final, any loss suffered in the property while so held and without the fault of the creditor, must be borne by him whose property is so taken. (McBride v. Farmers' Bk., 7 Abb. Pr. 347; 24 How. 611n; Clarkson v. De Peyster, Hopk. Ch. 505; De Peyster v. Clarkson, 2 Wend. 77-107; Parsons v. Travis, 5 Duer, 650; Worrall v. Munn, 17 N. Y. 475.) Had there been no appearance by Dawson there could have been no process against any of his property in this state save that which had been subjected to the lien of the attachment. (Cooper v. Reynolds, 10 Wall. 308; Schwinger v. Hickok, 53 N. Y. 280; Code Civ. Pro. §§ 709, 1307, sub. 1.)

Robert S. Rudd for respondents. The return to an execution being untrue, the party aggrieved thereby has a right to have it vacated and a true return substituted. (Todd v. Botchford, 86 N. Y. 517; Smith on Sheriffs, 408.) A sum of money actually in possession of the sheriff by virtue of a writ of attachment satisfies, pro tanto, a judgment against the attachment debtor recovered in the action in which the attachment issued. Upon the issuance of an execution in due form to the sheriff, in such an action, he must satisfy it out of the funds in his hands to the extent thereof.

(Code of Civ. Pro.

Opinion of the Court, per EARL, J.

$$ 706, 708, 1370.) The case is similar to one in which property has been levied upon by virtue of an execution and reduced to possession by the sheriff. In such instances the judgment is satisfied. (Scott v. Morgan, 94 N. Y. 508; People v. Hopson, 1 Denio, 574-578; Peck v. Tiffany. 2 N. Y. 451.) The general appearance of the respondent did not enable the appellants to disregard the fund in the sheriff's hands. (Kneeland on Attachment, § 2, and note; id. § 34; Robinson v. Nat. Bank, 81 N. Y. 393.)

EARL, J. In June, 1885, Wilson & Knowlton commenced an action in the Supreme Court against Dawson to recover damages for breach of contract and obtained an attachment against Dawson's property on the ground of his non-residence. The attachment was issued to Alexander V. Davidson, then sheriff of New York county, and he attached a certain debt owing from McDowell, Pierce & Co. to Dawson. Such proceedings were thereafter taken in that action on behalf of the plaintiffs that McDowell, Pierce & Co. paid upon the debt attached, to Davidson, as sheriff, the sum of $2,316.43. Thereafter, and before judgment and execution in the action, Davidson misappropriated the money and absconded. The question now to be determined is, who is to bear the loss of the sheriff's misconduct and default, the plaintiffs or the defendant? We think the loss should fall upon the plaintiffs. If this money had been seized by virtue of an execution and the defendant had been deprived thereof, it is well settled that the loss would fall upon the plaintiffs, and that to the extent of the property thus taken the judgment and execution would be satisfied. (People v. Hopson, 1 Denio, 574; Peck v. Tiffany, 2 N. Y. 451.) In those cases the loss was held to fall upon the judgment creditors because property of the defendants was taken and lost to them in consequence of legal measures instituted by the creditors. We think the same rule, and for precisely the same reasons, should be applied to a case of property seized by virtue of an attachment. An attachment differs from an execution in that by virtue of it the

Opinion of the Court, per EARL, J.

property of the alleged debtor is seized in advance for the satisfaction of any judgment that may thereafter be recovered in the action; and during the pendency of the action the property is held by the attaching officer as security for the judgment thereafter to be recovered. As in the case of an execution, the property is seized at the instigation of the attaching creditor and for his benefit, and if it is lost to the debtor the loss should fall upon the creditor, and he should take his remedy against the sheriff upon his official bond.

When one of two innocent parties must suffer by the wrong of a third party, it is frequently difficult to find an intelligible ground for placing the loss upon the one rather than upon the other; and the difficulty is solved, without any other reason, by holding that that one should bear the loss who put it in the power of the third party to commit the wrong. That rule may be applied here. The plaintiffs not only caused the attachment to be issued to the sheriff, but they procured the order which compelled McDowell, Pierce & Co. to pay the defendant's money to the sheriff.

If this money had been seized by virtue of an execution, it would at once have operated as a payment pro tanto upon the execution. Here, in theory of law, the money is in the possession of the sheriff, and when execution was issued to him it was at once applicable thereon and must be deemed to have been so applied. If the sheriff had been found within his county, and the execution had actually been delivered to him, he could not have returned the same unsatisfied, but could have been compelled to return the same satisfied as to the amount of money received by him upon the attachment. (Code, § 708.) And such a return would have been conclusive in favor of the defendant, and would have left the plaintiffs with their remedy against the sheriff for money received by him.

We are, therefore, of opinion that the order should be affirmed, with costs.

All concur.

Order affirmed.

Statement of case.

110 119

119

110
75 AD4222

In the Matter of the Application of the ROCHESTER, HORNELLS- 128 416
VILLE AND LACKAWANNA RAILROAD COMPANY, Respondent,
to Acquire Title to Lands of FRANCIS G. BABCOCK et al.,
Appellants.

Where, in proceedings to condemn land for railroad purposes, it appears
that one of the subscribers to the capital stock of the petitioner is a cor-
poration, and that its subscription is essential to make up the required
amount, in the absence of any proof it may not be presumed against the
act of the corporation and its payment of the percentage required that
it acted beyond its powers.

As to whether the land owners can raise or try the question, quære.
In such proceedings it appeared that the petitioner filed its map and profile
July 13, 1886, and served notice upon B., the land owner, and in due
season filed its certificate of location. On August tenth thereafter
B. leased to the N. Y., L. E. & W. R. R. Co., another railroad company,
for three years, the right to lay a track across his premises to a brick
yard, the owners of which had made verbal application for a switch, and
on the day last named made a written application. The switch was con
structed immediately across B.'s lands, but did not reach the brick yard,
as another land owner, whose lands it was necessary to cross, refused to
assent. Such switch where it crossed the petitioner's line was at first
torn up, but was replaced by said lessee and cars run upon it to defend
its possession. Held, that the facts did not establish such an occupation
of the switch for a public use by said lessee as would bar a condemna-
tion by the petitioner.

Lands held by a railroad corporation, but not used for or necessary to a
public purpose, may be taken by another similar corporation for railroad
purposes as if held by an individual owner.

The need of the land in aid of collateral enterprises, remotely connected with the running or operating of a railroad, will not justify an assertion of the right of eminent domain.

Also, held, that proof of an attempt to settle with the land owner and its failure, was sufficient without showing any negotiation with the lessee.

(Argued June 5, 1888; decided June 19, 1888.)

APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made the first Tuesday of June, 1887, which affirmed an order of Special Term appointing commissioners to acquire title to lands for railroad purposes. (Reported below, 45 Hun, 126.)

The facts, so far as material, are stated in the opinion.