It is well settled that the return of the sheriff, though made by a deputy, concludes the sheriff, and cannot be impeached by him. (Sheldon v. Payne, Sheriff, 7 N. Y., 453; S. C., 10 id., 398.)
It is insisted, in behalf of the appellant that, because the execution was held beyond the return day, with the knowledge and consent of the plaintiff, though with the knowledge and consent *617of the 'sheriff, that the payment, by the debtor, of the money to Paine, the deputy, and his retention of it, did not establish a liability for the money.
We think that when the sheriff consented that the execution be retained by his deputy that he stood in the same attitude as though he had himself consented to hold the execution in his hands, and to receive the money thereon. Payment of money to him upon the execution would have given rise to a duty to pay it over to the plaintiff' in the execution or his representatives. (Colvin v. Holbrook, 3 Barb., 477, affirmed 2 N. Y., 126.) Had the defendant in the execution failed to pay the money after the return day, the request of the plaintiff that it be held beyond the return day would, doubtless, have been an answer to any claim of the plaintiff against the sheriff. But when the sheriff consented that his deputy retain the execution beyond the return day, and receive payment therefor from the debtor, he continued his liability to account for, and pay over the moneys so received by his deputy to the plaintiff in the execution or his representatives.
We are referred to Gorham v. Gale (7 Cow., 739). In that case, the departure from the ordinary course, by reason of special instructions by the plaintiff’s attorney to the deputy, was not known' and consented to by the sheriff. It is distinguishable from the case before us.
It is well settled by authority that the sheriff could not levy after the return day upon the property of the debtor, so as to affect the rights of bona fide purchasers or incumbrancers. (Vail v. Lewis, 4 Johns., 450; Slingerland v. Swart, 13 id., 255; Shelton v. Westervelt, 1 Duer, 109.)
In the case before us the money was voluntarily paid by the 'debtor upon the execution to the deputy sheriff, and he made a return in the name of the sheriff; and, as we have before seen, that return under the circumstance already averted to, binds the sheriff
The exception taken to the introduction of the exemplified copy of the judgment before the justice, and the docket thereof in the county clerk’s office, is unavailing. The objection was that the evidence was incompetent. It did not point out any defect in the form of the certificate and exemplification. (Williams v. Sargeant, 46 N. Y., 481; Tooley v. Bacon, 70 N. Y. 34.)
*618The admissions of the defendant in conversation's with Paine, his deputy, about the execution and the money received on it,: were properly received as evidence against the defendant. (Williams v. Sargeant, 46 N. Y., 481.)
We do not find any error in the charge, or in the refusal to charge, calling for an interference with the verdict of the jury.
, They were allowed to pass upon the conflict in the evidence in. respect to the knowledge of the sheriff that the execution was to-be held by the deputy, and upon the question as to whether the-sheriff authorized and consented to its retention beyond the return day by the deputy.
Their findings are adverse to the defendant, and the judgment entered upon their verdict must be sustained, and the order refusing a new trial should be affirmed.
Talcott, P. J., and Smith, J., concui .Judgment and order affirmed.