Conner v. Keese
| Decision Date | 19 April 1887 |
| Citation | 105 N.Y. 643,11 N.E. 516 |
| Parties | CONNER and others, EX'rs, etc., v. KEESE and others. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term of the supreme court, First department.
Henry Thompson, for appellants.
George, W. Stephens, for respondents.
This action was brought by William C. Conner, sheriff of the county of New York, in his life-time, against one of his deputies, and the sureties of such deputy on his official bond given to the sheriff. The sheriff having died, the action has been continued in the name of his executors. The condition of the bond was such as, among other things, to render the sureties of the deputy liable for any damage the sheriff should sustain by reason of any false return which the deputy might make to any process delivered to him for execution. The breach alleged was, in substance, that an execution in an action of replevin for the return of the replevied chattels to the defendant was issued to the sheriff, and by him delivered to his deputy, Keese, for enforcement, and that the deputy made a false return to said execution that the chattels could not be found, by reason of which false return judgment had been recovered against the sheriff, which he had paid, with costs, etc. On the trial the plaintiffs proved the issuing of the execution. Its delivery to the deputy, Keese, was admitted. The return that the chattels could not be found, etc., signed with the name of the sheriff, and the recovery of judgment against the sheriff for the falsity of this return, were also proved. For the purpose of binding the deputy and his sureties by this judgment it was shown that he was a witness on the trial of the action against the sheriff for the false return, and also that, by the express terms of the bond, they waived notice of any action brought against the sheriff for any misfeasance or non-feasance on the part of the deputy, and covenanted that a recovery against the sheriff in any such action should be conclusive evidence of their liability for the full amount recovered. There remained but one link to be supplied in the chain of facts necessary to establish the liability of the defendants. That was that the return, for the falsity of which the sheriff had been compelled to pay damages and costs, had been made by the deputy, or on his report to the sheriff or under-sheriff. That essential fact was not established by the evidence adduced on the trial of this action, and on that ground the plaintiffs were nonsuited.
As to the defendant Johnstone the nonsuit was clearly right; for, by his answer, he put in issue all the facts alleged in the complaint bearing upon that question. The opinions of the majority of the general term are clearly right, so far as that defendant is concerned. But as to ...
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Birnbaum v. Birnbaum
...has long been the rule that the burden of establishing an affirmative defense rests upon the party asserting such defense, Conner v. Keese, 105 N.Y. 643, 11 N.E. 516; Anderson v. Material Co-ordinating Agency, Sup., 63 N.Y.S.2d 324; and the burden must be met by a fair preponderance of the ......
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Long Island Lighting Co. v. City of Glen Cove
...at the close of LILCO's case, has failed to sustain its burden and the affirmative defenses must be dismissed (CPLR 3018; Conner v. Keese, 105 N.Y. 643, 11 N.E. 516). However, some comment should be made on the argument of the City that the tortious nature of the prior McEwen judgment label......
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Besunder v. Coughlin
...with this proceeding. In establishing an affirmative defense, the party raising said defense has the burden of proof. Conner v. Keese, 105 N.Y. 643, 11 N.E. 516 (1887); Vol. 21 New York Jurisprudence, Evidence Section 150. In examining the affirmative defenses raised by the New York State r......