8 N.Y.S. 912 | N.Y. Sup. Ct. | 1890
The complaint in this action alleged that Kaughran and Barrett were copartners, composing the firm of Kaughran & Co., doing business in the city of Hew York, and that they were the owners, and in possession, of certain personal property; that in January, 1886, the said firm made an assignment, for the benefit of creditors, to one Miles O’Brien, who duly accepted the assignment, and took possession of the assigned property; that in the same month such proceedings were had in the court of common pleas that an order was made removing the said O’Brien as assignee, and providing that Henry B. Hoyt be substituted and appointed in his place and stead, upon giving a bond, but that Hoyt never qualified; that in Hovember, 1886, in an action brought in the supreme court, wherein one Faulkner was plaintiff, and Kaughran and others defendants, an order was made appointing the plaintiff receiver of the estate of said firm of Kaughran & Co., and whereby said O’Brien was directed to turn over said assigned estate to the plaintiff; and that the plaintiff duly qualified, and entered upon his duties as such receiver. The complaint then alleges that between January and February, 1886, and during the time said assigned property was in possession of O’Brien as aforesaid, the defendant in this action, the sheriff of the city and county of Hew York, wrongfully and unlawfully took from the possession of said O’Brien, and carried away, a large quantity of such goods and property so held and owned by said O’Brien as such assignee, of the value of $19,385.12,
It has been seen from the complaint that this action was strictly one of conversion; and it seems to have been thought that the sheriff, because of the demand made by the assignee in January, had converted the goods upon which lie had made a levy. It appears from the evidence that before tile assignment had been executed the sheriff had received two executions, both of which were admitted to have been lawful and valid executions. The amount of these executions was about $48,000. Under these two executions the sheriff had levied upon all the personal property belonging to the assignors, and while he was holding the same under these concededly valid levies the demand was made for the property. Subsequently the defendant sold between $50,-000 and $60,000 worth of property, realizing enough to satisfy them, and to leave in his hands a surplus of $10,864.44. Up to this time it seems to be clear that the sheriff had done nothing but that which he was authorized to do by the existence of the judgments and executions which he was called upon to satisfy otit of the property of the firm of Kaughran & Co. Subsequent to the assignment, and before the sale, the sheriff had received other executions; and it was for the purpose of relieving the property from the levy of these other executions that the $9,000 in money was placed in his hands, and the property surrendered by him to the plaintiff. . It would seem, therefore, that there had been no conversion whatever of the property by the sheriff, but, upon the contrary, he had surrendered it to the assignee, who was entitled to its possession. The most that could be said is that the sheriff had exacted from the assignee the $9,000, which the latter had been compelled to pay under the duress of these executions. This was by no means a conversion of the
Applications were made upon the part of the plaintiff to amend the complaint by inserting the word “money” along with personal property, and also to amend the complaint to conform to the proof, on any terms that the court might impose, and for leave to go to the jury upon the question of the conversion of the $10,864.44, the surplus, and for leave to withdraw a juror, so as to apply to the special term for proper relief. All these motions were denied by the court, upon the ground that no amendment of the complaint could be made which would not introduce a new and separate and distinct cause of action. The action as brought was for the conversion of particular personal property. What was sought to be reached by means of the amendment was money in the hands of the sheriff, $10,864.44 of which he had rightfully received, as the proceeds of the sale of the very property which it -was alleged he had converted. It is clear that no amendment could be made to introduce this new cause of action, which had no bearing or relation to that which had already been set out in the complaint. We cannot see that the court could have done otherwise, upon this condition of the proof; and the judgment appealed from should be affirmed, with costs. All concur.