Philip H. Reid, Appellant, v. Lewis R. Stegman, as Sheriff, etc., Respondent

Philip H. Reid, Appellant, v. Lewis R. Stegman, as Sheriff, etc., Respondent. Although an execution is regular on its face, if it be in fact unauthorized and void, the sheriff may refuse to execute it; and proof of its invalidity establishes a good defense in an action against him for such refusal. (Argued April 27, 1885; decided May 8, 1885.) This was an action against plaintiff, as sheriff of the county of Kings, for refusal to collect and failure to return an execution issuing to him as such sheriff, which recited a judgment in. favor of plaintiff, against Charles J. Henry, William M. Ship-man and James Riley, and directed him to collect the amount thereof out of the property of said judgment debtors. The following is the mem. of opinion. “ The action in which the execution was issued to the defendant was commenced against the plaintiff here in the name of ‘ Charles J. Henry, William II. Shipman and James Riley, as the board of commissioners of charities of the county of Kings.’ The title of the plaintiffs in that action as contained in the summons and complaint, and a reference to the statutes under which the action was commenced, and all the facts connected therewith, show that the action was intended to be and that it in fact was an action by ‘The Board of Commissioners of Charities and Correction of the County of Kings,’ a corporation authorized to sue and be sued by that name. The judgment in favor of the plaintiff for his costs in that action was entered and docketed against ‘ William II. Shipman, Charles J. Henry and James Riley, as the board of commissioners of charities of the county of Kings.’ That judgment and docket did not authorize an execution against the three persons named individually, and hence although the execution was regular on its face, it was in fact unauthorized and void, and the sheriff could refuse to execute it, and can therefore successfully defend this action. “ The judgment should be affirmed, with costs.” John H. Bergen for appellant. William Sullivan for respondent. [MAJORITY — Per Curiam rroem.] Per Curiam rroem. for affirmance. All concur, except Ruger, Ch. J., Rapallo and Andrews JJ., not voting. Judgment affirmed.