Van Schaick agt. Sigel.

N. Y. COMMON PLEAS.

HENRY VAN SCHAICK agt. FRANZ SIGEL.

Liability of register of New York for neglect or error in making and returning an official search.

The register of the city of New York is liable for all errors, inaccuracies or mistakes made in a return, when the usual requisition has been made at his office for a certificate of search.

And this, although the party in making his requisition at the register's office, designated the clerk whom he desired should make the search (Affirming 8. C., 58 How., 211).

It is the duty of the register to make the search correct, and any failure in that respect is a neglect of duty.

Where a plaintiff has been damnified by a wrong-doer, he must see to it that his loss is not swollen by any act of omission, or of commission on his part, but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrong-doer.

General Term, November, 1880.

Before DALY, Ch. J., J. F. DALY and VAN HOESEN, JJ.

VAN HOESEN, J.-The search, which proved to be erroneous, was made by De Grove, an employe of the defendant, and its correctness was certified to by Lennox, the assistant deputy register. No question as to the liability of the defendant for the damages caused by the mistake exists, and the principal point noted is, do these facts make the defendant guilty of misconduct or neglect in office? The question is important because the defendant's liabilities to arrest in this action depends upon the answer. The language of the statute seems to me to leave no doubt upon the point. It declares that "it shall be the duty of the register to cause every written order or written requisition for search to be made without delay, and to be certified and ready for delivery within twenty days from the receipt of such written order or requisition by him; and he shall be liable for all damages and injuries

Van Schaick agt. Sigel.

resulting from errors, inaccuracies or mistakes in his return so certified by him." It is also provided that his deputy and his assistant deputy shall have the same powers as a deputy county clerk. It is obvious that it is the duty of the register to cause the search to be made and certified. The search must be correct, for there is a penalty imposed for any mistake or error. If it be the duty to make the search correct, any failure in that respect is a neglect of duty.

The act provides that the requisite machinery shall be placed in the register's hands, for he is empowered to appoint searchers. He need not personally search or personally certify, for he may cause the work to be done; but his is the liability if there be inaccuracy, error or mistake. He has the unrestricted choice of his subordinates, and, like a sheriff, he should answer for the doings of his assistants in the line of their duty. The principal which would excuse the defendant from arrest would extend to the case of every officer whose duties are partially performed by a deputy, or by clerks, for though the certificate should be given by his own hand, the officer could truly say, in most cases, that he relied upon some assistant for information as to the matters to which he certified, and that personally he knew nothing of the error for which the injured party sought to hold him answerable. It must be held to be the duty of the register to know what he certifies to be true, and to be a neglect of duty to certify to an error (Pickard agt. Smith, 10 C. B. [N. S.], 470). A suggestion to the register that the plaintiff would be glad to have the requisition given to De Grove (for the special memorandum amounted to nothing more than that), does not relieve the defendant from liability. De Grove was a searcher appointed by the defendant, and steadily engaged in the office, and in that most essential respect this case differs from that of De Moranda agt. Dunkin (4 Term R., 119), where the sheriff was held not to be responsible for the act of a special bailiff appointed at the instance of the plaintiff.

German Bank of London agt. Dash.

It is said that when the plaintiff became aware that the search was incorrect, he was bound to communicate that fact to the defendant, that the latter might have bought up the Coffin mortgage before the costs of foreclosure had been added to it. It is undoubtedly true that the plaintiff was under obligation to make reasonable exertions to prevent the increase of the damages likely to fall upon himself, and thus incidentally to protect the defendant, but it was not his duty to go one step farther. He was not bound to know that the defendant could or would buy, or settle the Coffin mortgage, and he is not to suffer because he did not think of that plan. Where a plaintiff has been damnified by a wrong-doer, he must see to it that his loss is not swollen by any act of omission, or of commission on his part, but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrong-doer.

The opinion of judge LAREMORE states the facts and the law so clearly, that I think it unnecessary to say more. The judgment should be affirmed, with costs. DALY Ch. J. and J. F. DALY, J.

SUPREME COURT.

GERMAN BANK OF LONDON, LIMITED, agt. BOWIE DASH and another.

Attachment-Facts which are not sufficient to justify a resort to the remedy · Disposal of the property of the plaintiff alone not sufficient Code of Civil Procedure, section 636.

The defendants had in store for plaintiff a quantity of coffee, to be held for it, with liberty to sell, and to pay the plaintiff, out of the proceeds, the amount due upon bills of exchange which it had discounted on the security of the property. The defendants sold the coffee, using the proceeds, which were more than sufficient to pay the drafts, in their business.

German Bank of London agt. Dash.

Held, upon a motion to vacate an attachment granted upon these facts, that the modified wording of section 636 of the Code of Civil Procedure has not changed the provision of section 227 of the former Code in this respect, and that the attachment cannot be sustained, because it has not been shown that the debtors either assigned, disposed of, or secreted, or were about to assign, dispose of, or secrete their property, with the intent to defraud their creditors.

Held, that the provision as to attachments differs in this respect from that providing for the making of an order of arrest; so that a debtor is liable to arrest, but not to seizure of his property by attachment, when he may have disposed of plaintiff's property or that of any other person with intent to defraud its owner.

Special Term, December, 1880.

MOTION to set aside an attachment.

Aaron Pennington Whitehead, for defendants.

Wheeler H. Peckham, for plaintiff.

DANIELS, J.-The affidavit made on behalf of the plaintiff and the receipts annexed to it establish the facts that the defendants had in store for the plaintiff 4,870 bags of coffee, to be held for it, but with liberty to sell it and to pay the plaintiff out of the proceeds the amount due to it upon bills of exchange which it had discounted on the security of the property. The affidavit shows that the defendants afterwards sold the coffee and made use of the proceeds, which were more than sufficient to pay the drafts, in their business, and in that manner appropriated them to their own use. Upon these facts the attachment against the defendants' property was issued, and they now insist that they were not sufficient to justify a resort to that remedy. It has not been shown that the defendants had disposed of, or were about to assign, dispose of, or secrete any of their own property with intent to defraud their creditors, but it has been claimed that they became liable to an attachment of their property because they had fraudulently disposed of the plaintiff's property.

German Bank of London agt. Dash.

As the statute defining the facts upon which an attachment might be issued before the enactment of the present Code, provided it could be done where the defendants were residents of the state, as these defendants are, for a fraudulent disposition of property, only when the property was that of the defendant (Code of Procedure, sec. 227), it was indispensable that it should be shown that the defendant either had or was about to dispose of his or in case it was a corporation, of its property with the intent to defraud creditors.

In the revision which has been made by the present Code upon this subject the terms "his" or "its" have been omitted. (Code Civil Procedure, sec. 636, sub. 2), and on that account it is urged that a debtor is liable to the seizure of his property by attachment when he may have disposed of the plaintiff's property, or that of any other person, with intent to defraud its owner. In this respect the provision differs from a similar one made for the purpose of providing for the making of an order of arrest. There the language made use of is the same as it was in the preceding Code, making it still necessary that the debtor shall be shown either to have disposed, or that he is about to dispose of or remove his property with intent to defraud his creditors (Code Civil Procedure, sec. 550, sub. 2). Both these remedies, in their nature, should depend very much upon the same state of facts, and there seems to be no reasonable propriety in requiring in the one case that the right shall be restricted to the disposition by the debtor of his own property with a fraudulent intent, while in the other the disposition of the property of any other person would also entitle the creditor to the remedial benefit of the statute. That was not, probably, what the legislature intended to do by means of these subdivisions. There would be no propriety in making one remedy dependent solely upon the disposition of the debtor's property, while the right to the other might be created by the disposition of the property of a stranger. The subdivision itself is not consistent with such construction