The facts of this case are stated in the opinion rendered upon a former appeal. 58 Misc. Rep. 556. Upon the first trial and again on the second trial, it was shown that the marshal did not file his return of execution as required by law. Upon the last trial, which we are now called upon to review, it was proved that the defendant did not collect anything upon the execution. Upon this evidence the court below gave judgment for the defendant. There was no proper proof before the court to show that the defendant even attempted to collect the amount of the execution. In the absence of such proof, the plaintiff was prima facie entitled to recover the amount for which the execution was issued. If the defendant had proved an attempt to collect the amount of the execution and that it was uncollectible, a different situation would be presented-in relation to which the rule stated in Curry v. Farley, 8 Daly, 228, would seem to be applicable. But a marshal charged with the duty of attempting to collect an execution cannot, upon his failure to file a return as required by law, avoid liability merely by his statement that he collected nothing. For all that appears in the evidence he collected nothing because he made no attempt to collect anything.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment reversed and new trial ordered, with costs to appellant to abide event.