In re Dawson

• Decision Date: 19 June 1888
• Parties: In re DAWSON.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 114

17 N.E. 668

In re DAWSON.¹

Court of Appeals of New York.

June 19, 1888.

Appeal from general term, supreme court, First department.

Henry D. Hotchkiss, for appellant.

Robert S. Rudd, for respondent.

EARL, J.

In June, 1885, Wilson & Knowlton commenced an action in the supreme court against Dawson, to recover damages for breach of contract, and obtained an attachment against Dawson's property on the ground of his non-residence. The attachment was issued to Alexander V. Davidson, then sheriff of New York county, and he attached a certain debt owing from McDonald, Pearce & Co. to Dawson. Such proceedings were thereafter taken in that action on behalf of the plaintiffs that McDonald, Pearce & Co. paid upon the debt attached, to Davidson, as sheriff, the sum of $2,316.43. Thereafter, and before judgment and execution in the action, Davidson misappropriated the money, and absconded. The question now to be determined is, who is to bear the loss of the sheriff's misconduct and default,-the plaintiffs or the defendant? We think the loss should fall upon the plaintiffs. If this money had been seized by virtue of an execution, and the defendant had been deprived thereof, it is well settled that the loss would fall upon the plaintiffs, and that to the extent of the property thus taken the judgment and execution would be satisfied. People v. Hopson, 1 Denio, 578;Peck v. Tiffany, 2 N. Y. 456. In those cases the loss was held to fall upon the judgment creditors, because property of the defendants was taken and lost to them in consequence of legal measures instituted by the creditors. We think the same rule, and for precisely the same reason, should be applied to a case of property seized by virtue of an attachment. An attachment differs from an execution in that by virtue of it the property of the alleged debtor is seized in advance, for the satisfaction of any judgment that may thereafter be recovered in the action, and during the pendency of the action the property is held by the attaching officer as security for the judgment thereafter to be recovered. As in the case of an execution, the property is seized at the instigation of the attaching creditor, and for his benefit; and if it is lost to the debtor the loss should fall upon the creditor, and he should take his remedy against the sheriff upon his official bond. When one of two innocent parties must suffer by the wrong of a third party, it is frequently difficult to find an...