I concur in the result of the foregoing opinion of my brother Bocees, but I wish to remark that the- defendant’s evidence is solely *571in miUgaUon of damages. The argument of the defendant must be that the plaintiff has not been injured, because the judgment debtor was worth nothing. Where, as in this case, a judgment debtor is shown to have had, at the time when the execution was in the sheriff’s hands, money lying in the bank, more than enough to pay the execution, I am not prepared to say that proof that the judgment debtor had no leviable property establishes the fact that the plaintiff has not been injured. The plaintiff, until the return of the execution, would hardly be expected to attempt to reach property not leviable. And as the defendant, by neglect to return the execution, violates his official duty, he must show that no harm has been occasioned, “by showing the inability of the debtor to pay.” And it is well said in Ledyard v. Jones (7 N. Y., 550) that he cannot mitigate damages by showing that the plaintiff can still collect the debt out of the judgment debtor.
New trial granted, costs to abide event.