14 Barb. 456 | N.Y. Sup. Ct. | 1852
The question to be determined in this ease is, whether the property sold by the defendant was exempt by law from execution.
The wife of the plaintiff was not living, but he had two children, for whom he provided. He had been keeping house until in the spring or early in the summer, when he ceased housekeeping, stored his furniture and went into the western part of the state, on a visit to some of his relations, taking with him the children. There was evidence tending to show that he had not finally abandoned housekeeping, but that he intended to return and resume housekeeping, and that he did in fact resume it on his return, after the sale of his property. Indeed, I think we are bound to hold that the jury, in finding for the plaintiff, in this case, settled as questions of fact, that the property was stored only temporarily, and that he intended to resume housekeeping when he should return from his visit. With these facts, therefore, in the case, we will examine the legal question whether the property was exempt from execution.
The revised statutes except certain specific articles, owned 'by any person, being a householder, and provide that they shall continue so exempt while the family of such person, or any of them, may be removing from one place to another. (2 R. S. 367.) A later act, passed in 1842, (Laws of 1842, ch. 157,) exempts, in addition, necessary household furniture and working tools, and team, owned by any person being a householder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars.
If all the property sold by the defendant was covered by the act of 1842, there would be no difficulty, I think, in saying it was clearly exempt. The defendant had a family for which he provided, and his relative character, in that respect, would undergo no change because he and his children were temporarily on a visit among their relations. But most of the articles are those specified in the exemption provided by the revised statutes, and are not exempt unless the plaintiff was a “ householder” at the time of the levy and sale.
What is meant by the term “householder?” It does not
I think these authorities are conclusive on this point. A person having, and providing for, a household, is a “ householder:” and the character is not lost by a temporary ceasing of housekeeping, and storing of property, with a view to again return to it and renew housekeeping, any more than it was during the removal of the family from one place of residence to another.The plaintiff had a family under his control, which hé was bound by law to support and maintain. In construing and applying this statute, we should bear in mind, as was said of it by Nelson, Ch. J., in Carpenter v. Herrington, (25 Wend. 370,) that it “ is remedial, and should be liberally construed to effect the humane object in view.” It was said by the court in Woodward v. Murray, above cited, that “ the legislature meant to confer
Parker, Wright and Harris, Justices.]
It is also alledged, for error, that there was no proof of facts sufficient to exempt the property, although it should be assumed that the owner was a householder. It undoubtedly devolved upon the plaintiff to show, affirmatively, the facts which entitled him to the exemption of the property in question. (14 John. 434.) There was certainly evidence before the jury on this point. It seems to have been conceded that all of the plaintiff’s household property was sold. Indeed, there was proof by the witness Benton, that the only other property there, owned by the plaintiff, was a wagon on which Bulkley had a mortgage. As to some of the articles, it was material to inquire whether they were necessary, and on that point, the jury, knowing the number of children, their ages, &c., were the most competent to judge. It was a question of fact exclusively for their determination.
I think the judgments of the justice, and of the county court, were right, and ought to be affirmed.
Harris, J. concurred.
Wright, J. dissented.
Judgment affirmed.