The opinion of the court was delivered by

The first count of the declaration sets out that a writ of summons in tort was issued out of the Supreme Court of this state, at the suit of "William Astor, the plaintiff, against Herman Brede, and delivered to the defendant, Heller, sheriff of the county of Hudson, for service; that the sheriff deputized one Peter Wedin to serve it, and that the said summons was returned by said sheriff by his special deputy “ served personally Nov. 14th, 1896, on Herman Brede, personally, by reading the same to him and giving to him a copy thereof; ” that the said Peter Wedin returned with the said summons an affidavit made by him that he served said Brede, on the 14th day of November, 1896, with a true copy of the summons and declaration in the cause; that such further proceedings were taken in the cause that final judgment in favor of said Astor, and against said Brede, was entered on the 4th of February, 1897; that the said sheriff made a false return to the said writ of summons, and that by reason thereof the said Brede did not appear in the Supreme Court to auswer to the said writ, by means whereof the said Astor was greatly injured.

This count in the declaration shows no legal cause of action. It does not aver in what respect the return was false or injurious to Astor. The return may have been false in stating *80that the summons was served personally, and yet it may have been a legal service and the judgment obtained thereupon may in all respects be valid and binding.

This count, therefore, alleges no actionable wrong or failure on the part of the sheriff to perform his duty.

The second count contains the like averments except that it alleges that the sheriff wholly failed and neglected to serve the summons.

The judgment, therefore, which Astor obtained against Brede, upon the supposition that the summons had been served, is without force or validity. In this count the averments are sufficient to charge the sheriff with actionable negligence, by which Astor has been injured.

The demurrer is general to both counts of the declaration, and therefore one count being good, the demurrer must be overruled, with costs.