Bortel agt. Ostrander.

return the overplus, as to pay the debt or damages and costs. (Subdivision 12 of 8 64 of the Code; 2 R. S. 4th ed. p. 448, § 131; 2 id. p. 447, § 127; 2 id. p. 449, § 142.)

5. A party cannot compel an officer to return an execution until after the expiration of the return day of the process. (Morange agt. Edwards, 1 Smith N. Y. C. P. Rep; Wilson agt. Wright, 9 How. Pr. Rep. 460; see rule 6 of Supreme Court Rules.)

6. The execution is regular upon its face; (Bander agt. Burley, 15 Barb. S. C. R. 404; Price agt. Shipps, 16 id. 585;) but no objection was made to the validity of the execution, or any proceeding of the constable, up to and including the sale. The plaintiff expressly sanctions the proceedings, by bringing this action for the overplus.

II. In order to maintain an action for overplus moneys in the hands of a constable, arising from a sale of property by virtue of an execution, it is necessary to make a demand upon the officer for its payment, before suit.

1. A person to be eligible to the office of constable, must be an elector of the town for which he is chosen. (1 R. S. 4th ed. p. 654, § 31.)

2. An elector must be a resident of the district or town in which he votes. (Article 2, § 1 Constitution of 1846.)

By the court-GOULD, Justice. All the facts in this case are admitted, and are as follows: On the 17th of December, 1855, the defendant (a constable) received an execution from a justice of the peace, against the property of the present plaintiff; which execution was returnable in sixty days, (February 13th, 1856.) On the 21st of December, 1855, the constable under said execution made a levy on two cows; on the 29th of December, 1855, he sold one cow, for a sum which exceeded the execution and his fees, by $10.57. At some time prior to the day of trial of this suit, the constable paid to the plaintiff in that execution, the amount due to him. On the 4th day of January, 1856, this present plaintiff commenced against the constable this suit, for the $10.57 surplus moneys, on the sale

Bortel agt Ostrander.

of the cow. The justice gave judgment for the defendant; which judgment the county court affirmed, (on appeal, by plaintiff,) on the ground that the action was prematurely brought, as the return day of the execution had not arrived, nor had the plaintiff made any demand of the surplus moneys. From that judgment of the county court the plaintiff appeals to this court.

The cases cited by plaintiff, are all instances where sheriffs having executions of courts of record, had allowed the return day to pass, and had neither paid the moneys into court, (as in such courts they may,) nor paid them to the party whose they were. There indeed, there can be no doubt that a demand was not necessary before suit, as the officer by doing his duty and paying the money into court, could have discharged himself from all liability. But here the case is entirely different. The justice could not receive this money: nor could any one but the plaintiff. When was the constable, (where no demand was made on him,) bound to pay it? By 2 Revised Statutes, (4th ed.,) p. 448, § 131, he must return the execution, pay debt, &c., to justice, "returning the overplus," to the defendant in the execution. This "returning," does not precede the return of the execution, but follows it; and for the return of the execution he has till the return day; until which day, even though he has collected the money, he is not obliged to make his return. To be sure, in this case, he actually was very prompt in doing his duty, and did have the execution satisfied before this trial. Though it does not appear any where in the case, that the execution was actually returned be fore the trial of this cause. I can see no possible ground of accusing the officer of any actual neglect of duty; and I fully concur with both county court and justice, in saying that, where the return day was not past, and no demand of the surplus moneys had been made, the plaintiff's action was prematurely brought.

County court judgment affirmed.

NOTE.-In the case of Vence agt. Vence, ante, page 497, the order was appealed from, and the appeal argued at the May general term, 1858, at Elmira, before Justices GRAY, MASON, BALCOM and CAMPBELL, and the order affirmed.

INDEX.

ACTION. On negotiable promissory note, allegation of bona fide holder

and owner, sufficient...

The court acquires jurisdiction of an action from the time the sum-
mons is served, or any provisional remedy is allowed.........
A railroad company cannot be sued before a justice of the peace of a
town through which their road passes, by a short summons.
An action against common carrier, when tort waived and suit brought
on contract, under the laws of 1847 and 1849, for causing death,
&c. ......

PAGE

1

8

17

128

An action on the custom against an innkeeper for the loss of the bag-
gage of his guests is founded in tort; and the defendant may be
held to bail under § 179....

210

Misjoinder of actions. One for cause of action in tort, the other on
contract...

227

Where cross actions were brought, and the court refused before issue
upon the merits, to compel an election, or to stay one action un-
til the determination of the other.....

236

An action against a sheriff for not returning an execution, is not one
of which, according to § 54, a justice of the peace has no juris-
diction..

281

Facts constituting assault and battery, and allegations constituting
slander, joined in the complaint, and sustained as constituting
but a single transaction, and making but a single cause of action 286
A complaint containing a cause of action for fraud, and the defend-
ants demur, they cannot escape liability by showing that they
acted as agents.

314
In the superior court of New-York, no attachment can issue against a
foreign corporation, unless there is an action regularly com-
menced. When such action may be sustained against stock-
holders here, for unpaid subscriptions to the stock..

.....

372

Index.

PAGE

......

417

417

ACTION. It seems, that the former judgment creditor's suit to compel the dis-
covery of property, is repealed by the Code, and the proceedings
supplementary to execution under the Code, substituted..
But an action by a judgment creditor to set aside an assignment made
by a judgment debtor, as fraudulent and void, as against creditors,
is entirely different from a mere creditor's bill or supplementary
proceedings......
When an injunction and receiver will be ordered in a creditor's suit,
on a judgment obtained by default, against two members of a
firm, in order to reach the joint property of the firm.......... 481
An action against a constable for the recovery of overplus moneys col-
lected by him on execution, cannot be sustained, where the action
is brought before the return day of the execution, and where no
demand of such moneys has been made. The action is prema-

ture

AFFIDAVIT OF MERITS. An agent or attorney in fact, may under
certain circumstances, and by showing a good excuse, make
an affidavit of merits. Such affidavit may be contradicted so far
as the excuse extends; but not as to the merits....

AMENDMENT.

An answer containing mere negative averments, deny-
ing the allegations of the complaint, is not amendable of course,
under 172. The pleading must require a response to be
amended of course under that section....
Amendments of pleadings on the trial, (third trial,) so as to conform
them to the facts proved....

......

Where a complaint upon a promissory note of a married woman, de-
manded judgment for the amount, in pursuance of the notice in
the summons, held, that the complaint could not be amended of
course, so as to ask equitable relief. The complaint could only
be amended, on amending the summons, which could only be
done by leave of the court..

ANSWER. Answers and defences, which do not set up new matter; but
are mere denials of the plaintiff's allegations, may be stricken
out on motion, as sham and irrelevant, although verified. (See
contra below, page 371.).......

572

199

345

399

555

186

Where the averments of the complaint are absolute and unequivocal,
and supported by an oath of positive knowledge, on a motion to
set aside the answer as sham, the allegations being merely on in-
formation and belief, the defendant will be bound to support his
answer by the oath of a party having knowledge............................. 186
The provision of the Code, authorizing the court to order the defend-
ant to satisfy part of the plaintiff's claim, where the answer ad-

Index.

PAGE

mits a part to be just, is an extraordinary and severe remedy. It should only be granted in a case clearly within its terms.... 258 ANSWER. An answer which denied that the plaintiffs were the owners

and holders of the draft, held frivolous.....

The court has no power to strike out pleas simply as false. The pro-
vision is to strike out sham and irrelevant answers and defences.
What is sham, irrelevant, false and redundant, and how and
when stricken out....

......

An answer containing mere negative averments, denying the allega-
tions of the complaint, is not amendable of course, under § 172.
The pleading must require a response, to be amended of course,
under that section....

When an answer contains a mere denial of the allegations of the
complaint, or of some of its material allegations, and is duly veri-
fied, it should never be stricken out..
When the answer refers to the offer of judgment made by the defend-
ant, and is served with it, it should be filed with the offer as a
part of it......

266

329

345

371

420

APPEAL. Mode of reviewing justices' judgments by appeal. What the notice of appeal must contain, &c.......

32

ment.

An order for a reference and to take an account, and decisions there-
on upon the trial, cannot be reviewed on appeal, as from a judg-
The judgment is not final.......

57

Where on appeal an undertaking has been given, fully complying with
the statute, and the appeal is perfected, the appellant does not
remain responsible for the consequences of misfortune and insol-
vency of his sureties. Otherwise on injunction.....
There are but two cases in which proceedings upon a trial at the cir-
cuit can be reviewed at the general term in the first instance.
Those cases stated. (Court of appeals.)..

310

407

It is one thing to hold that a judgment can be appealed from, and
quite another to decide that the supposed errors occurring at the
trial, can be reviewed. Mode of review, where trial is had by
the court or by referees, pointed out. (Court of appeals.)...... 425
No appeal lies from an order made by a single justice of the marine
court to the general term of that court. The general term is con-
... 537
fined to appeals from judgments..

APPEARANCE. Serving notice of a motion in an action on the plaintiff's

A

attorney, signed by an attorney as "att'y for def't," is a sufficient notice of appearance by the defendant..

Like notice of assessment of damages by a jury, on a writ of inquiry is necessary, as is required on an assessment by the clerk, where the defendant has appeared in the action.....

92

92