The People v. Callahan.

by his own handwriting unable to explain why he did not make the alteration as directed; in fact, swearing that when he saw the instrument afterwards he did not know that it was worded as it was. The whole of his testimony and that of the defendant, with the discrepancies in their respective statements, which I will not pause to point out, is a good illustration of the healthy rule which will not allow a written instrument to be varied or altered by oral testimony.

There has been no misapprehension of the facts by the court; and the statement submitted to show it may be said rather to be devoted to convincing us that we have misapprehended the law. We are thoroughly satisfied that the case was correctly decided; that there was no misapprehension of the facts or of the law, and the motion for reargument should be denied.

JOSEPH F. DALY, J., concurred.

Reargument denied.

THE PEOPLE OF THE STATE OF NEW YORK, on the relation of JESSE B. COLES, against JOHN CALLAHAN, Justice. of the First District Court of the City of New York.

[SPECIAL TERM.

(Decided January 9th, 1878.)

A writ of mandamus will not be granted to compel a justice of a District Court in the city of New York to insert in a judgment already rendered by him a statement that the defendant against whom it is rendered is subject to arrest and imprisonment, since the entry of the judgment required by the facts of the case is a judicial and not a ministerial act, and the remedy for a failure of the justice to enter the proper judgment is by appeal, and since also the justice after having entered the judgment is functus officio, and a subsequent entry on his docket to the effect that the defendant was subject to arrest and imprisonment would be void.

The People. v. Callahan.

APPLICATION for a mandamus to John Callahan, the justice of the First Judicial District Court, in the city of New York, to compel him to enter in his judgment in the case of Jesse B. Coles v. John Hannegan the statement that the defendant, Hannegan, was subject to arrest and imprisonment. The facts are stated in the opinion.

Jeroloman & Arrowsmith, for motion.

Hall & Blandy, opposed.

JOSEPH F. DALY, J.-Coles sued Hannegan in the District Court upon a claim for goods sold and delivered. The action was commenced by a warrant of arrest upon the ground that the debt was fraudulently contracted. The defendant was arrested and brought into court; no motion was made to discharge the warrant; issue was joined as to the debt and judgment rendered in favor of the plaintiff for $180, the amount of the claim, and $17 50 costs; the plaintiff asked the justice to state in the judgment and enter in the docket that the judgment was one wherein the defendant was subject to arrest and imprisonment, which the justice refused to do, and the plaintiff excepted. The plaintiff now applies for a mandamus to the justice to compel him to make the statement requested, and which is required by the statute in order to authorize an execution against the person in a case where an order or warrant of arrest has been issued and is not vacated.

I am not required here to decide whether the justice decided correctly in refusing to make his judgment as requested by plaintiff; for the reason that this is not the tribunal to review the ruling of the officer. The statement by a justice that the defendant is subject to arrest is part of his judgment; he must pass upon that question with the other questions in the case and render judgment accordingly. His act is a judicial and not a ministerial one in deciding and stating as the statute requires. (Carpentier v. Willett, 31 N. Y. 90; reported more fully in 28 How. Pr. 225.) If the jus

The Mayor, &c. v. Ryan.

tice decides that the defendant is subject to arrest his decision is the subject of review upon appeal. (Ib.) Conversely, if he pass upon the question and decide the other way the plaintiff may appeal. This court cannot order a judgment one way or the other by mandamus. Besides,

after rendering his judgment the justice is functus officio, and a subsequent decision and entry on his docket that the defendant is subject to arrest would be void. (Carpentier v. Willett, supra.)

Application denied with costs.

THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, against MICHAEL RYAN, impleaded with AUGUST SIBBERNS, Respondent.

(Decided February 4th, 1878.)

In an action against the sureties on the official bond of a marshal of the city of New York, where the alleged breach of the bond is misconduct of the marshal, in levying upon the goods of one person under an execution against another, the judgment in an action by the party whose goods were taken against the marshal for the unlawful taking may be given in evidence, although the record does not show that the judgment was recovered against him as a marshal, or for misconduct in his office. Such evidence is material to prove the act of taking, and parol evidence dehors the record may be given to show the grounds of the judgment, and that the act was done colore officii.

APPEAL from a judgment in favor of defendant.
The facts are stated in the opinion.

ROBINSON, J.-The decision of the Court of Appeals on the former appeal taken in this action to that court from a judgment of this court that had been affirmed at general term, and whereby the judgment rendered in favor of the defendant in this court was reversed, is conclusive upon

The Mayor, &c. v. Ryan.

plaintiff's right of recovery upon the facts alleged and proved.

The very point now taken, that the surety upon the of ficial bond of a city constable was not liable for his official misconduct upon a judgment rendered against him for the unlawful detention of personal property, under color of official duty, where he was not sued by name or by allegation of his having acted in such official capacity, was specifically taken on the former trial, but does not appear to have been so addressed to the attention of the court, at general term or in the Court of Appeals, as to have called for any expression of opinion on either occasion. The defendant's points, however, presented this omission as one debarring any right of recovery, and notwithstanding it was so urged the Court of Appeals granted a new trial.

This brings the case fairly within the principle decided by the Court of Appeals in the case of Buell v. The Trustees of Lockport (8 N. Y. 55). In which the court say (what is applicable to the present case): "The decision of the Court of Appeals on the former appeal in this case disposes of it. The right of plaintiff to recover, on proving the facts stated in their declaration, was directly involved, and must be deemed established by the reversal of the judgment of non suit, and the award of a new trial. Unless some ground of defense was disclosed by the defendant on the last trial which was not brought to the notice of the court upon the former appeal, the judgment of the court below should be affirmed." The only qualification now to be noted is as to the last sentence, where the court below had recognized the principle stated; but in this case it was at trial overlooked or disregarded, and the principle decided requires a reversal.

But in addition to this, the case presented fully showed that the judgment against Sibberns was for official misconduct by him as constable, in levying under an execution issued to him against the property of one person upon that of the person aggrieved, and for which the action was brought and judgment recovered. Objection was taken on the trial by the defendant, Ryan, the surety upon the official

The Mayor, &c. v. Ryan.

bond in suit, to the introduction of the judgment record in the action brought by Redman against Sibberns, the constable, for the unlawful taking and detaining of whose property by him by virtue of an execution against other persons. The recovery was had, because, as claimed, it failed to prove a recovery against such constable for any default or misconduct in office. The objection was sustained and plaintiff excepted.

The exception was well taken. The fact of a recovery for an unlawful act was material, and defendant's liability as surety upon the official bond of the officer for unlawfully taking, under an execution, the property of a third person, is well established by the decisions of our courts. (The People ex rel. Kellogg v. Schuyler, 4 Coms. 172; Pond v. Leman, 43 Barb. 155; Rogers v. Weir, 34 N. Y. 465.) The judgment need not necessarily disclose the assumed authority of the officer. Such an allegation against one acting under color of office would be out of place in a complaint for trespass or for the recovery of personal property. The pretense for the unlawful act might be unknown, and it would be perhaps imprudent and a surrender of some right in such a pleading to assert or acknowledge the defendant's official character. It is for the fact that the officer so assumed to act, and not simply for or because of any judgment, that his surety is responsible. The law of 1813 (1 R. L. 219, sec. 5; 2 ib. 398) superadds to the necessary proof, in an action on the bond, that the wrongful act was done colore officii; that a judgment should be first recovered therefor against the of ficer, in order to give effect to the right to bring an action against the sureties. The fact that he so assumed to act, is one in such an action which may be established de hors that record. As the Court of Appeals say in White v. Madison (26 N. Y. 130): "It is always competent to show by parol the grounds on which a verdict or judgment was rendered when the grounds become material and do not appear on the record."

A new trial should be ordered, with costs to plaintiff to abide the event.