Gagen v. Taylor

Appellate Division of the Supreme Court of New York

Gagen v. Taylor

231 A.D. 830

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1930

StatusPublished

This text of 231 A.D. 830 (Gagen v. Taylor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gagen v. Taylor, 231 A.D. 830 (N.Y. Ct. App. 1930).

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Opinion

Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of the plaintiffs for the sum of $594.61, with costs. The record shows conclusively that the sheriff failed to return the execution delivered to him in plaintiffs’ action against Hrabolski within sixty days of its receipt. This is sufficient to cast liability for the amount of the judgment upon the sheriff in the first instance. Under such circumstances the sheriff may show, in mitigation of his liability, that the defendant had not sufficient property out of which the whole or a part of the execution could be collected. This the sheriff made no attempt to do upon the trial, nor could he well do this, for the record discloses that, five days after the execution was issued to him, he returned $555 to the attorney for Hrabolski. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.

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Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of the plaintiffs for the sum of $594.61, with costs. The record shows conclusively that the sheriff failed to return the execution delivered to him in plaintiffs’ action against Hrabolski within sixty days of its receipt. This is sufficient to cast liability for the amount of the judgment upon the sheriff in the first instance. Under such circumstances the sheriff may show, in mitigation of his liability, that the defendant had not sufficient property out of which the whole or a part of the execution could be collected. This the sheriff made no attempt to do upon the trial, nor could he well do this, for the record discloses that, five days after the execution was issued to him, he returned $555 to the attorney for Hrabolski. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.

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Bluebook (online)

231 A.D. 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gagen-v-taylor-nyappdiv-1930.