46 A.D. 360 | N.Y. App. Div. | 1899
In the complaint in this action it is alleged that in the .latter part of the summer or during the fall of 1889, the defendants wrongfully entered upon premises of plaintiff and oné Beecher and took possession of and sold, or took possession of and converted' to their own use, certain property belonging to the plaintiff and.Beecher, consisting of an engine and belting, a shingle mill and a cider mill, of the value of $400, and that Beecher had conveyed all his interest to the plaintiff. In the answer's of the defendants there was in substance ' a general denial. It was.also alleged that the defendant White was-sheriff and the defendant Wakeman a deputy sheriff of the county, and that the property was taken by them solely in their official capacity and under and by virtue of a writ of attachment issued out of the Supreme Court, and that the cause of action of the plaintiff did not accrue within one year before the commencement of the action. It w-as also alleged that the property was at the time of the seizure and sale the property of Joseph L. Fleming and was s.old by said ' sheriff by virtue of an execution • issued on a judgment obtained by the defendant Haas against .said Fleming.
No question is made upon this appeal as to the ownership by plaintiff or his assignor of the property or as to its value.
The claim of the appellant Haas is that upon the facts he is not responsible for the conversion. The claim of the other appellants is that the one.year Statute of Limitations (Code Civ. Proc. § 385) protects them upon the theory that the levy on. the attachment) as well as on the execution, was more -than one year before the commencement of'this action, on the 5th of" November, 1890.
Haas received from the sheriff the proceeds of the sale or the property upon the execution. ' In obtaining the attachment, Haas made an affidavit which, among other things, stated that Fleming “has property in the State of New York, to wit: one feed mill, one ' shingle mill, one "cider mill, as plaintiff (Haas) is informed and believes.” It was also stated in the affidavit that Fleming went away about the spring of 1889 and wap insolvent, and that before
The fact, simply, that a plaintiff in an ordinary judgment and ■execution receives the proceeds of a sale on the execution, in ignorance of the fact that they are the result of a trespass, would not make the plaintiff responsible for the trespass. (Clark v. Woodruff, 83 N. Y. 518.) If, however, he receives and retains the proceeds, with knowledge of the facts, he is liable. (Freem. Exns. § 273; Murray v. Bininger, 3 Abb. Ct. App. Dec. 336.) In Abbott v. Kimball (19 Vt. 552) it is said that, an attaching creditor is not liable for a wrong committed by tlie officer,' unless he in some way participated in the wrong, or ratified or confirmed it after becoming aware of it. Counselling the act which creates the liability of the ■officer may be enough. (Hyde v. Cooper, 26 Vt. 552.) In Averill
In the present case Haas, by the judgment and execution, not. only put the officer in motion, but directed him to take and sell the specific property here in question. More than that, he initiated by his affidavit for the attachment the attack or claim on this property, and had then information of the claim of Winfield, from whom the plaintiff derives title. Haas is presumed to know the character of the judgment in his favor and of the execution, and, if so, he presumptively knew, when he received the proceeds of the sale, that they included the proceeds of the sale of this property, as it was required to be first sold. It seems to have been practically conceded at the trial that the property did not at the time of the attachment, belong to the debtor Fleming. .
The evidence warrants, I think, the finding that Haas .participated in the. transaction from the start with knowledge of the adverse claim, and, if so, the trial court did not err in holding.him responsible.
The question whether the defendants White and Wakeman. are protected by the short Statute of Limitations depends on whether-an actual levy was made upon the property by virtue of the attachment or execution prior to the 5th of November, 1889. The trial court finds that the officer did not take possession ; that neither the-plaintiff nor Beecher had any knowledge of any levy; and, in effect, that there was no levy on either writ prior to November fifth. The appellants claim that this finding is against the evidence. On the part of the plaintiff there was general evidence that Winfield, and Beecher, or the plaintiff and Beecher, were in possession from March 1, 1889, up to the time of the sale, from which it might, in the-absence of any "other evidence, be inferred that there was no actual levy under the attachment or execution. On the part of the defendant, Wakeman, who had the attachment and execution, testified, upon being shown the warrant of attachment, that as "deputy sheriff he levied that attachment. It was then said by plaintiff’s counsel, “ we don’t question anything of' that kind ; . * * * that he did-all these things we don’t question.”
The warrant and inventory,- judgment roll and affidavit for attach-
It appeared that the property was not removed. This did not invalidate the levy. (Roth v. Wells, 29 N. Y. 471, 485.)
The finding that there was no actual levy prior to FTovember 5, 1889, was, I think, against the weight of evidence. The officer was ■entitled to the benefit of the statute, although as to the plaintiff he may have been a trespasser. (Cumming v. Brown, 43 N. Y. 514.)
But it is said that the exceptions filed by the appellants to the decision of the court aré not definite enough to enable them to raise this question. The decision stated separately the facts found and the conclusions of law. By section 992 of the Code exceptions to findings of fact in actions tried by the court are forbidden, and questions of fact in a case like the present may be reviewed upon appeal without excejhions, provided that the case contains a certificate that it contains all the evidence. (Porter v. Smith, 107 N. Y. 531; Mead v. Smith, 28 Hun, 639 ; Matchett v. Lindberg, 2 App. Div. 340.) There is here such a certificate.
All concurred.
Judgment affirmed as to the appellant Haas.
Judgment reversed as to the other appellants and a new trial granted, with costs of appeal to such appellants to abide the event.