Beaty v. Swarthout, 32 Barb. 293

Beaty v. Swarthout

32 Barb. 293 | N.Y. Sup. Ct. | 1860

*294 By the Court,

E. Darwin Smith, J.

The decision of the court of appeals in the case of Lanning v. Carpenter, (20 N. Y. Rep. 447,) disposes of most of the questions raised upon the trial of this action. The only point seriously urged upon the argument arises upon the offer to prove that the defendant, as sheriff of the county of Schuyler, took the property in question by virtue of the execution .mentioned, by and with the consent of the plaintiff, and that the plaintiff drove the property to the sale and actually bid on it, at the sale. This offer was objected to, on the ground that no such defense was set up in the answer, and the objection sustained, and the defendant’s counsel duly excepted. Under the general denial of the code, evidence of a distinct affirmative defense is not admissible. The only evidence which the defendant is entitled to give, under such general denial, is limited to a contradiction of the plaintiff’s proof and to the disproval of the case made by him. The action is brought for an unlawful taking of the property in dispute. The claim made in the complaint is that the plaintiff, being the owner and possessor of such property, the defendants at the time &c. unlawfully tooh the said property from the plaintiff and converted the same to their own use. Under the former system the action would have been called trespass de bonis, &c. Replevin in the cepit also would have lain, upon the allegations in this complaint. The plaintiff) to maintain the action, must necessarily prove a taking. Such proof was given, and the plaintiff made out a clear case of the taking of this property by the defendant under and by virtue of an execution against J ames Beaty, the father of the plaintiff, and under an express claim to take the same on such execution. The taking proved was prima facie tortious. Such must be any and every taking from the possession of another, presumptively, until the contrary appears. The plaintiff was not bound in the first instance to prove anything more than a formal actual taking of the property from his possession. Such taking the defendant was called upon to justify. If he could prove that the *295taking complained of was by and with the consent of the plaintiff, this would have been a perfect defense, for there Obviously can be no trespass in taking a man’s property by and with his express consent. Volenti non fit injuria. But this proof was not directed to disprove the taking of the property, but to justify such taking. It was directed to prove a license, which was always pleaded specially in the action of trespass, and was not provable under the general issue. (Chitty’s Plead. 494. 2 Camp. 378. Phil. Ev. 507, 10th ed.) The decision of the court was clearly right upon this question. The other exceptions, I think, were properly disposed of at special term. The defendant was undoubtedly entitled to contradict James Beaty, and disprove the plaintiff’s title to the property, but that was not really what he proposed, to any practical purpose. The offer to show that the property was not the property of the plaintiff, and to contradict Beaty, were doubtless understood by the circuit judge, and intended by counsel, as an offer to show that the sale from James Beaty to the plaintiff was fraudulent. This the defendant was not entitled to do, without prior proof of a lawful execution; and this was the view taken of this question in the charge of the judge, which on this point was not excepted to, and was clearly right. The plaintiff was in possession of the property, claiming it as his own, when it was levied on, and proved a sale of it to him by his father, sufficient as between them, to pass the title. This was clearly sufficient proof of property to entitle him to recover against a wrongdoer. The application to amend by inserting a supplemental answer was properly denied. It was not such an amendment as should be made at the circuit. It was, in any point of view, an application addressed to the discretion of the judge, in respect to which no exception could be taken. The case was rightly disposed of at the circuit, and a new trial should be denied.

[Monroe General Term, September 3, 1860.

Smith, Johnson and Knox, Justices.]