54 Barb. 411 | N.Y. Sup. Ct. | 1866
By the Court,
The motion for a nonsuit was properly denied. It was' made clearly to appear that the property which the defendant took and sold was exempt from levy and sale on execution. I cannot find any thing in the case on which to sustain the other ground for non-suit. If it was based- on the idea that the execution contained a direction excepting exempt property from its operation, that fact should have appeared in the case, either by statement, or a copy of the writ set forth, in order to raise the point on appeal. In the absence of all evidence of such exception, the court cannot assume that the writ contained such a direction, although that may be the usual form. Therefore the point cannot be considered.-
An application for,- leave to amend a pleading on the trial is always addressed to the discretion of the court; and, if denied, is not the subject of appeal or review. (Phincle v. Vaughan, 12 Barb. 215. New York Marbled Iron Works v. Smith, 4 Duer, 362. Hendricks v. Decker, 35 Barb. 298.)
The complaint in this case set forth the whole grounds of the plaintiff’s cause of action, viz., that the defendant was sheriff, La Hue his deputy, the taking and conversion of property under and by virtue of an execution against him, and that such property was exempt. It set forth more than was necessary. The cause of action was complete without any statement of the reason or authority for taking the property, and its exemption. (Butler v. Mason, 16 How. 546.) Such allegations were no part of the gist of the cause of action, and were not necessary to be proved"
The theory of such a trial is this: The plaintiff having averred the tortious taking of his property by the defendant, proves the act and the damage, and rests. The
Therefore, for the reason that the judgment on which the execution was issued was not set up in the answer, the judge at circuit was right in refusing to allow the defendant to show its consideration as a defense to the plaintiff’s claim of exemption from levy and sale, on execution, of the property in suit.
Judgment affirmed.
Bockes, James, Potter and Rosekrans, Justices.]