61 N.Y.S. 515 | N.Y. App. Div. | 1899
In the complaint in this action it is alleged that in the latter part of summer or during the fall of 1889 the defendants wrongfully entered upon premises of plaintiff and one 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 answers 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 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 was also alleged that the property was, at the time of the seizure and sale, the property of Joseph L. Fleming, and was sold by said sheriff by virtue of an execution issued on a judgment obtained by the defendant Haas against said Fleming. Upon the trial it was conceded that the action was in trover, and the court found that the property was chattel property. It appeared that on March 1, 1889, Joseph L. Fleming, then being in possession, of the property, transferred it to Albert S. Winfield, whn at same date transferred an undivided one-half thereof to Mark A. Beecher, and that on the 10th June, 1889, Winfield transferred the other half to the plaintiff. On the 1st day of August, 1889, the defendant Haas, a creditor of Joseph L. Fleming, in an action in the supreme court for the recovery of his debt, obtained an attachment against the property of Fleming. This was placed in the hands of the defendant Wakeman, a deputy sheriff, for execution, and on the 3d of August, 1889, as the defendants claim, the attachment was levied upon the property in question. On the 18th of October, 1889, Haas, in his action, obtained judgment against Fleming after service of summons by publication, and execution thereon was issued and delivered to Wakeman, as deputy sheriff, who, on the 21st of October, 1889, as the defendants claim, levied upon the same property under said execution, it being then, as the officer testifies, in his possession under the attachment, and the same was sold by him under said execution on the 8th November, 1889, at public sale, and bid in by Fanny B. Winfield for the sum of $186.11, which was apparently the amount of the judgment of Haas and the expenses of the sale. 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 limitation (section 385, Code Civ. Proc.) 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 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. Ex’ns, § 273; Murray v. Bininger, 3 Abb. Dec. 336. In Abbott v. Kimball, 19 Vt. 552, it is said that an attaching creditor is not liable for a wrong committed by the officer, unless he in some way participated in the wrong, or ratified or confirmed it after becoming aware of it. Counseling the act which creates the liability of the officer may be enough. Hyde v. Cooper, 26 Vt. 552. In Averill v. Williams, 1 Denio, 501, 503, it is said an action will not lie against the plaintiff in the execution unless he interfered with the levy, or assented to what had been done by the officer. 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
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 taire 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 5th. 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 on 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 attachment were put in evidence. From the return of the officer, which was a part of these papers, it appeared that under the-writ the property had been seized, and taken into possession of the officer, an inventory and appraisal made, and a copy of the at-, tachment and inventory served upon Mr. Hill, as one who claimed the property at that time. Mr. Wakeman further testified that upon receiving the execution on October 21, 1889, he immediately levied upon the property, and that “the property was in my possession at the time.” The witness was not asked by either side-for any further details as to either levy, and no -further evidence was given on the subject. The plaintiff did not deny the service upon him of a copy of the attachment and inventory, and neither the plaintiff nor Beecher testified that they had no notice of the levies, and no rebutting evidence was offered as to the levies, as testified to or certified by the officer. 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 November 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 are not definite enough to enable them to raise
Judgment affirmed as to appellant Haas. Judgment reversed as to the other appellants, and new trial granted, with costs of appeal to such appellants to abide the event. All concur.