Arrex v. Brodhead

The defendant, Brodhead, in removing the plaintiff from the premises, was acting as a public officer under process, which he was by law authorized to execute; and the defendant, Vandemark, acted under him in his aid. There is here no question of excess of force in the execution of the process, as the court held, that, irrespective of that question, the process afforded the defendants no protection whatever for their acts in making the removal. In this ruling we are of the opinion that the court was in error. The process was fair on its face. The court awarding it had, in this case, not only apparent, but actual, jurisdiction both of the person and subject-matter of the action in which it issued ; and the plaintiff was a party defendant in that action. Process thus issued by the court, if fair on its face, will protect the officer in its execution. (O'Reilly v. Good, 42 Barb., 521; Hudler v. Golden, 36 N. Y., 446 ; The Troy, etc., R. R. Co. v. Kane, 72 N. Y., 614; Deutsch v. Reilly, 7 Weekly Dig., 523 ; Shaw v. Davis, 55 Barb., 389 ; Field v. Parker, 2 Hun, 342.) There are many other cases to the same effect. It has been repeatedly decided that process in due form, issued by a competent tribunal or officer authorized to act in that regard, will protect a ministerial officer who acts under it according to law; that such process will afford complete protection to the officer charged with its execution ; and so, too, as to those who act in aid of the officer. (Landt v. Hills, 19 Barb., 283 ; Doolittle v. Doolittle, 31 Barb., 312; Elder v. Morrison, 10 Wend., 128.) Nor does it make any difference that the officer is indemnified. (Horton v. Hendershot, 1 Hill, 118.) In the last case cited it is said that taking indemnity does not deprive the officer of the protection which his process affords ; nor would knowledge by him of a want of jurisdiction deprive him of its protection, so be it that the process is fair on its face. (Noble v. Holmes, 5 Hill, 194; The People v. Warren, 5 id., 440 ; Webber v. Gay, 24 Wend., 485.) He may not, however, build up for himself a title under process, unless it be well issued in law.

The plaintiff’s counsel insists that the writ pf assistance could only issue to dispossess those whose rights had been determined by the judgment in the action in which it issued — that is, *271could only regularly issue. If this be admitted, it would but .raise a question of irregularity. The writ would still remain good until set aside. So, too, it is urged that the plaintiff had rights as tenant in common of the premises which were available to her against the execution of the writ, because as was claimed .such rights were not determined by the judgment in the foreclosure suit. Still, the fact remains that the writ was against her, .and. was, on its face, regular and fair. So the officer would be protected in its execution. Even if she could set it aside on motion, it would afford protection to the officer while it remained in force. And, again, .it is said in the MSS. opinion of Judge Allen, in Wilbor v. Daniels, furnished us by counsel, that “ whether the purchaser shall have the benefit of the summary proceeding, or resort to some other remedy to secure the fruit of his purchase ; and whether the party resisting the claim of the purchaser to immediate possession upon some claim of right, independent of the judgment,-and consistent with it, shall be permitted to retain the possession and drive the purchaser to his action, or shall yield possession, and himself seek any relief to which he may be entitled by proper action, are questions addressed to the court having jurisdiction to give the process.” The case, then, still stands upon the ground that the writ of assistance, being against the plaintiff, and on its face regular and fair in all respects, afforded protection to the person entrusted by law with its execution. The judgment and order appealed from must be reversed.

Judgment and order reversed, new trial granted, costs to abide the event.

Judgment and order reversed, new trial granted, costs to abide > event.