242 A.D. 408 | N.Y. App. Div. | 1934
Mary Ann Goebel, the mother of the plaintiff, was the owner of a Genesee county farm, which was subject to a mortgage held by the defendant Storer. While the mortgage was outstanding, by a written instrument, dated January 31, 1929, she leased the property, together with certain tools and stock which were on the farm, to Lineol B. Fassett for a term which was to end on the 1st day of December, 1929, at an annual rental of $500. On the 14th day of February, 1929, by a written instrument, she transferred, sold and assigned to the plaintiff the lease, and “ all the property by said contract [viz., the lease] delivered to Lineol B. Fassett.” After making this assignment she, together with her husband, Adam Goebel, assumed the payment of the mortgage debt. The defendant, by action, foreclosed her mortgage upon the farm, making Mary Arm Goebel, her husband and Lineol B. Fassett parties defendant, and, at the foreclosure sale, bought the farm and was thereafter granted a deficiency judgment against Mary Ann Goebel and Adam Goebel. Execution on the deficiency judgment was issued to the sheriff on the 9th day of
The defendant contends that error occurred in the court’s instruction to the jury that the defendant was liable for the direction given by her attorneys to levy on the property on the farm. In the absence of express authority, an attorney is not authorized to give directions on behalf of his client to a sheriff as to what property shall be seized and sold. (Welsh v. Cochran, 63 N. Y. 181.) The instruction was erroneous, but does not constitute reversible error because the purchase by the defendant of the goods, established by undisputed evidence, was a complete ratification of the act of the sheriff in levying upon the goods and selling them. (Brainerd v. Dunning, 30 N. Y. 211. And see Welsh v. Cochran, supra.) The responsibility of the defendant for the wrongful act of the sheriff in seizing and selling the goods was coequal with the responsibility of the sheriff himself.
The defendant further contends that even though the defendant must be held to have joined the sheriff in the wrongful seizure, nevertheless, the plaintiff has no cause of action based on the seizing and selling of the property, because the plaintiff at the time of the levy and sale did not have either actual possession or the right of immediate possession. This point does not appear to have been called to the attention of the court at the trial. The lease from Mary Ann Goebel to Lineol B. Fassett in so far as it
There is another theory upon which the plaintiff is entitled to the judgment. One purchasing, in good faith, chattels from a wrongdoer is not hable for the conversion of the chattels purchased until after demand and refusal (Gillet v. Roberts, 57 N. Y. 28), unless such purchaser resehs the articles or so deals with them as to establish conclusively an appropriation as distinguished from a possession. (Pease v. Smith, 61 N. Y. 477; Spraights v. Hawley, 39 id. 441; Employers’ Fire Ins. Co. v. Cotten, 245 id. 102.) The doctrine of the Gillet case is not applicable here, however, because the defendant’s ratification of the sheriff’s seizure and sale made her responsible for the wrongful seizure and sale from the beginning. No demand was consequently necessary to put the defendant in the wrong and establish a cause of action. As defendant’s possession, originating in the wrongful taking, continued after the 1st day of December, 1929, when Fassett’s rights under the lease unquestionably expired (if they were not terminated earlier), the plaintiff is entitled-to assert her claim for conversion based upon
All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgment affirmed, with costs.