Van Schaick v. Sigel

The search, which proved to be erroneous, was made by De Grove, an employe of the defendant, and its correctness was certified to by Lennox, the assistant deputy register. Ho question as to the liability of the defendant for the damages caused by the mistake exists, and the principal point mooted, is, do these facts make the defendant guilty of misconduct or neglect in office? The question is important, because the defendant’s liability to arrest in this action depends upon the answer. The language of the statute seems to me to leave no doubt upon, the point. It declares that “ It shall be the duty of the register to cause every written order or written requisition for search to be made without delay, and to be cer*388tified and ready for delivery within twenty days from the receipt of such written order or requisition by him, and he shall be liable for all damages and injuries resulting from errors, inaccuracies or mistakes in his return so certified by him.” It is also provided that his deputy and assistant deputy shall have the same powers as a deputy county clerk. It is obvious that it is the duty of the register to cause the search to be made and certified. The search must be correct, for there is a penalty imposed for any mistake or error. If it be the duty to make the search correct, any failure in that respect is a neglect of duty.

The act provides that the requisite machinery shall be placed in the register’s hands, for he is empowered to appoint searchers. He need not personally search, or personally certify, for he may cause the work to be done, but his is the liability if there be inaccuracy, error or mistake. He has the unrestricted choice of his subordinates, and, like a sheriff, he should answer for the doings of his assistants in the line of their duty. The principle .which would excuse the defendant from arrest, would extend to the case of every officer whose duties are partially performed by a deputy, or by clerks, for though the certificate should be given by his own hand, the officer could truly say in most cases, that he relied upon some assistant for information as to the matters to which he certified, and that personally he knew nothing of the error for which the injured party sought to hold" him answerable. It must be held to be the duty of the register to know what he certifies to be true, and to be a neglect of duty to certify to an error (Pickard v. Smith, 10 G. B. N. S. 470).

A suggestion to the register that the plaintiff would be glad to have the requisition given to De Grove (for the pencil memorandum amounted to nothing more than that), does not relieve the defendant from liability. De Grove was a searcher appointed by the defendant, and steadily engaged in the office, and in that most essential respect this, case differs from that of De Moranda v. Dunkin (4 Term, 119), where the sheriff was. held not to be responsible for the act or 7a special bailiff appointed at the instance of the plaintiff.

*389It is said that when the plaintiff became aware that the search was incorrect, he was bound to communicate that fact to the defendant, that the latter might have bought up the Coffin mortgage before the costs of foreclosure had been added to it. It is undoubtedly true that the plaintiff was under obligation to make reasonable exertions to prevent the increase of the damages likely to fall upon himself, and thus incidentally to protect the defendant; but it was not his duty to go one step further. He was not bound to know that the defendant could or would-buy or settle the Coffin mortgage, and he is not to suffer because he did not think of that plan. Where a plaintiff has been damnified by a wrongdoer, he must see to it that his loss is not swollen by any act of omission, or of commission, on his part, but he is not called upon to do an act which will not affect his own damages, though it would be of service to the wrongdoer.

The opinion of Judge Labbemobe states the facts and the law so clearly that I think it unnecessary to say more.

The judgment should be affirmed, with costs.

Chaeles P. Daly, Oh. J., and J. E. Daly, J., concurred.

Judgment affirmed, with costs.