Hauger v. Bernstein

Citations

• 7 Daly 340

Syllabus

<p>The act of 1872 (L. 1872, p. 1495, § 11), giving the Marine Court of the city of New York jurisdiction of an action on the official hond of a marshal upon leave being first granted by a justice of that court, does not repeal the provisions of the act of 1862 (L. 1862, c. 484, p. 971, et seq.), giving a justice of the Court of Common Pleas power to allow the marshal’s bond to be prosecuted in the name of the parties aggrieved. The remedies under the two acts are different and either may be resorted to.</p> <p>In an action in the Marine Court on the official- bond of a marshal, brought in the name of the party aggrieved, an allegation in the complaint, that on a certain day leave was granted by the Court of Common Pleas to so bring such action, is sufficient upon demurrer. It is presumed that the leave was granted in a proper case.</p> <p>Where the condition of the official bond of a marshal was, that he should “ well, and faithfully execute the duties of said office of marshal without fraud, oppression or deceit,”—Held, that allegations that the marshal, raider an attachment against another person, seized property of plaintiff ; that plaintiff obtained judgment of recovery and for damages ; and that an execution on the judgment issued against the marshal was returned unsatisfied, constituted a sufficient assignment x>f a breach of the bond.</p> <p>Queer e, whether executions upon judgments in actions under the act of 1872, should issue out of the Marine Court or out of the Court of Common Pleas.</p>