Veltin v. Cash

Appellate Terms of the Supreme Court of New York

Veltin v. Cash

125 Misc. 257, 210 N.Y.S. 552, 1925 N.Y. Misc. LEXIS 879

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 22, 1925

StatusPublished

This text of 125 Misc. 257 (Veltin v. Cash) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Veltin v. Cash, 125 Misc. 257, 210 N.Y.S. 552, 1925 N.Y. Misc. LEXIS 879 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

Section 141 of the Municipal Court Code provides that a marshal who fails to return an execution within twenty days is liable to the execution creditor for the amount of the execution. The defendant marshal failed to make such return. He was, therefore, prima facie liable for the amount of the execution and could mitigate the damages only by showing that plaintiff was not aggrieved. (Smith v. Geraty, 61 Misc. 101.) It further appears that after the defendant returned the execution he collected twenty-five dollars from the judgment debtor pursuant to a demand that he had previously made upon him to pay the marshal’s costs. He had no right to retain this collection arbitrarily as the fees to which he would have been entitled if he had collected the judgment. It was, therefore, error to dismiss the complaint.

Judgment reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Bijur, Mullan and Proskauer, JJ.

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Per Curiam:

Section 141 of the Municipal Court Code provides that a marshal who fails to return an execution within twenty days is liable to the execution creditor for the amount of the execution. The defendant marshal failed to make such return. He was, therefore, prima facie liable for the amount of the execution and could mitigate the damages only by showing that plaintiff was not aggrieved. (Smith v. Geraty, 61 Misc. 101.) It further appears that after the defendant returned the execution he collected twenty-five dollars from the judgment debtor pursuant to a demand that he had previously made upon him to pay the marshal’s costs. He had no right to retain this collection arbitrarily as the fees to which he would have been entitled if he had collected the judgment. It was, therefore, error to dismiss the complaint.

Judgment reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Bijur, Mullan and Proskauer, JJ.

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Bluebook (online)

125 Misc. 257, 210 N.Y.S. 552, 1925 N.Y. Misc. LEXIS 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veltin-v-cash-nyappterm-1925.

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