Feinberg v. Allen

103 N.Y.S. 339 | N.Y. App. Div. | 1907

Kellogg, J. :■

It is claimed that the defendant, as sheriff, on March 18,1905, sold the plaintiff’s wood on an execution against liis wife, and for that alleged conversion of liis property he has recovered here. The defendant asserts that in February preceding an attachment against the plaintiff’s wife was delivered to liis deputy, who went to the . place where tiie wood was and levied upon it, and immediately went to the residence of the plaintiff and his wife, served the attachment upon her, and that at that time the plaintiff stated to him. that lie did not own the wood. Thereafter defendant’s deputy measured the wood, caused an inventory to be taken and certified by two disinterested freeholders, and after judgment was entered in the action again went to the place where the wood was, levied the execution upon it, advertised the sale, attended at the place of sale for the purpose of the sale and at the sale the plaintiff first claimed that he was the owner of the wood. The defendant contends that these facts proved, or tended to. prove, that the plaintiff did not' own the wood and estopped him from asserting title to it. . .

The trial court, at the request of the plaintiff, charged that there was no proof in the case before the jury that the defendant acted upon any statement made by the plaintiff, to which the defendant excepted. The' court evidently had it in mind that if the statement was made after the levy and was retracted before the sale that the defendant relying upon the statement had taken no action to his prejudice, overlooking entirely the fact that the defendant claimed that he relied upon the statement from the time it was made and after that measured the wood, caused it to be appraised, became liable for the appraisers’ fees, again went to the place and levied the execution upon the wood, advertised the sale and attended upon the day of sale. Upon defendant’s theory all of these acts had been done relying upon the statement and before it was retracted. The charge was, therefore, erroneous.

It was not necessary to plead the facts relied upon to create the estoppel. Such facts as a matter of evidence tended to show that the plaintiff in good conscience did not own the property, as against defendant. In any event the evidence was received without objection and was proper for the consideration of the jury. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.