57 How. Pr. 131 | New York Court of Common Pleas | 1879
Motion for new trial by defendants Waterbury, Smith & Co.
A verdict was rendered against that firm and Phillips, a city marshal, for $200 damages, for failing to deliver to plaintiff goods which had been seized under an attachment, the attachment having been dissolved by the operation of the bankruptcy laws of the United States (Sec. 14, bancruptcy act).
The question of the liability of Waterbury, Smith & Co., for the non-delivery of the attached goods, was reserved for this motion. They were the plaintiffs in the action in the marine court in which the attachment was issued."
The attachment was regular and was properly issued. It was dissolved by the operation of the bankrupt law and not for any defect, insufficiency or irregularity. It was not void.
The plaintiffs did not receive any part of the property seized, all of which remained in the custody of the marshal until he gave to plaintiff, as assignee in bankruptcy, an order upon his storekeeper for its delivery.
The plaintiff took what was so delivered' but complained that some portion of what had been seized was missing. He contends that the plaintiffs in the attachment are responsible for the missing portion on the ground that the marshal was their agent.
The officer becomes the agent of the party suing out process only where the process is irregular, unauthorized and void (Kerr agt. Mount, 28 N. Y., 659). But the officer is in no sense the agent of the party where the process is authorized
The authority from the party to the officer, which the law implies, is “only coextensive with that conferred by the warrant and to do only lawful acts pursuant to the process.” (Welsh agt. Cochran, 63 N. Y., 184).
In the warrant issued by the defendants, Waterbury, Smith & Co., to the defendant Phillips, the marshal, the latter was directed to “ attach, and safely keep,” the property of Hewlett, the defendant, in the process. So far as taking the property was concerned the marshal acted under his warrant, as directed, but he was to do more, “ to safely keep ” the property attached, and only by keeping safely, as wall as taking, would .the marshal perform his duty and fulfill his instruction.
If the marshal suffered any part of the property to be lost or if he converted any of it to his own use, he did not obey but disobeyed the warrant and did the opposite of that which he was commanded.
For the breach of his instructions and duty the plaintiffs, in a valid process, cannot be made answerable.
The dissolution of the attachment by operation of the bankrupt law did not have the effect of making the attach-' ing creditors tn'espassers db initio (as in cases where the attachment is vacated for irregularity) and they are not to be held liable in such a case as this because of their original direction to the marshal to attach the property.
They gave no direction to the marshal afterwards and had no control of the goods which were in custody of the officer of the law. He and his bondsmen are alone liable for his official misconduct in converting a portion of the goods he was directed to keep.
The case of Wilson agt. Brinkman (2 Nat. Bktcy. Register), cited by plaintiff’s counsel, is not in point. Ho question, such as arises here, was before the court. The decision is
These observations apply equally to any claim that defendants, Waterbury, Smith & Co., are liable under the first attachment issued by them which was vacated by the special term of the marine court but afterwards reinstated by the order of the general term of that court reversing this special term order. For the reasons stated on the trial, I held the attachment to be valid and regular.
A new trial should be granted defendants Waterbury, Smith & Co.
Costs to abide event.
