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Edmunds v. Barton

Court of Appeals of the State of New York
Mar 1, 1865
31 N.Y. 495 (N.Y. 1865)

Opinion

March Term, 1865

Lyman Tremain, for the appellant.


I am of the opinion that the authority of the deputy, Ballard, ceased upon the service on him of the written revocation of his appointment signed by the plaintiff or sheriff. The statute directs that the appointment shall be made under the hand and seal of the sheriff, and be filed in a public office (1 R.S., 379, § 74), but it makes no provision as to the form to be used in revoking the appointment. It is very proper that it should be done by some act in writing, and be notified to the displaced deputy; but the formality of a seal is not indispensable unless it is required by some positive law, and the statute makes no such requirement. The arrangement is now wholly statutory, and the courts cannot add any formalities which the act has not made necessary. Formerly a deputy might be appointed by parol ( Holliday v. Boardman, 10 Paige, 232), and undoubtedly the appointment might be revoked in the same way. The appointment was during the pleasure of the sheriff, and any authentic act determining his pleasure ought to be sufficient to determine his authority. The common law doctrine, that an instrument under seal cannot be discharged except by a deed, does not, I think, apply to a case like this. This is an administrative arrangement, and the statute regulates the same.

I am not aware that it has ever been held that the acts of an officer after his appointment has expired, or he has been removed, are valid for any purpose. A deputy sheriff, as I have said, holds his situation at the pleasure of the sheriff, and the sheriff is responsible for his acts. It is true he takes an indemnity, but that may turn out, as it seems to have in this case, to be insufficient. If a removed deputy can, by persisting in performing official acts, after he and his sureties have become insolvent, affect third parties under the nature of being an officer de facto, the sheriff will be liable for his default in spite of anything he can do to prevent it. With the exception of summoning a single juror, the plaintiff does not appear to have been aware that the deputy in this case was assuming to act after he had been removed. I suppose the sheriff can appoint a deputy to summon a juror without making him a deputy for general purposes. He can depute any person to do a single act.

The sale of this property under the execution of Perego Buckley does not affect the question. The deputy Barton was procured to do it by the plaintiffs in the execution, or their attorney who indemnified him, and that ought not to prejudice the plaintiff.

I am in favor of reversing the order of the General Term, and affirming the judgment entered on the report.

PORTER, WRIGHT, DAVIES and DAVIS, JJ., concurring.

Order reversed and judgment on the report of referee affirmed.


Summaries of

Edmunds v. Barton

Court of Appeals of the State of New York
Mar 1, 1865
31 N.Y. 495 (N.Y. 1865)
Case details for

Edmunds v. Barton

Case Details

Full title:HARMON EDMUNDS, Sheriff of Otsego County, v . RUSSELL P. BARTON

Court:Court of Appeals of the State of New York

Date published: Mar 1, 1865

Citations

31 N.Y. 495 (N.Y. 1865)