From Casetext: Smarter Legal Research

Veltin v. Cash

Supreme Court, Appellate Term, First Department
Jun 22, 1925
125 Misc. 257 (N.Y. App. Term 1925)

Opinion

June 22, 1925.

Haskell, Lyon Block [ William S. Haskell of counsel], for the appellant.

Jules H. Baer, for the respondent.


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.


Summaries of

Veltin v. Cash

Supreme Court, Appellate Term, First Department
Jun 22, 1925
125 Misc. 257 (N.Y. App. Term 1925)
Case details for

Veltin v. Cash

Case Details

Full title:LOUISE S. VELTIN, Appellant, v . JACOB CASH, Respondent

Court:Supreme Court, Appellate Term, First Department

Date published: Jun 22, 1925

Citations

125 Misc. 257 (N.Y. App. Term 1925)
210 N.Y.S. 562