3 Barb. 518 | N.Y. Sup. Ct. | 1848
By the Court,
I. If this action can be sustained by the plaintiff, it is manifest that it is not on the ground that be is the owner of the property, and for the recovery of damages for a direct invasion of such property. The absolute owner of property, or an officer who has levied on it, and is therefore a special owner, may maintain an action of trespass or trover for an unlawful intermeddling with such property by a stranger; and it is no defence in the latter case that there may be property enough remaining to satisfy the execution. Not so, however, in a case like this, when the suit is brought, not for a direct injury to the property itself, but to recover the consequential damages sustained by a judgment and execution creditor, occasioned by the removal of property upon which he had acquired a lien by the levy of his execution. For example, if a sheriff levy upon property to the value of $300, to satisfy an execution of $100, and a stranger should seize and convert a part of it worth $50, it cannot be doubted that the officer might recover the value of the property thus wrongfully taken, in trespass or trover. But if the plaintiff in the execution should sue an individual to whom the general owner, (the defendant in the execution,) had transferred a part of the property subsequent to the levy, for removing it, he must prove that he necessarily suffered damage by the act complained of. That is, that there was not property enough left to satisfy his execution. Thus in the case of Lane and wife v. Hitchcock, (14 John. 213,) it was held that a mortgagee could not recover against one who had diminished the lien of his mortgage by removing a building from the premises bound by the mortgage, unless he could show that he suffered damages as a necessary
Now, if we apply this principle to the case at bar, we shall see that after the defendants had converted a part of the property bound by the levy, to the payment of other creditors of Cowles, there remained an abundant fund, subject to the execution, and bound by the levy, to satisfy the execution. We must assume this to be so; for the jury have so found the fact to be. And notwithstanding the assignment was fraudulent, nevertheless it operated as a power of attorney from the assignor to apply the property in the payment of his debts. Now, conceding the sale of this property by the defendants on the 10th of May, 1843, to have been a conversion of it, and that the plaintiff had a superior lien upon it, still, if there were enough left to satisfy the plaintiff’s execution, and the plaintiff has either released the residue, or lost his lien by his own want of due cave, then this action for consequential damages cannot be maintained. Now, independent of any release of this property, it is clear that this plaintiff has lost his lien on the residue by his own gross negligence. Had it not been for his express directions, the constable would either have taken the property into his possession, or would have himself been liable for not doing so. We think, for these reasons, that the verdict was right.
II. Again; Although when a right of action has accrued, a release obtained by fraud, and without consideration, is void; yet we do not think that the constable could maintain an action founded on a right acquired by the levy, after a return of the execution by which he, by order of the plaintiff, formally released the levy. This was an official act, and must be held to have subverted all his rights acquired by the levy, thus explicitly and absolutely abandoned.. If this be so, it seems to
III. It has been held by the court in 1 Denio, 335, that in a case like the present, no" action could be maintained by the plaintiff in the execution. We were asked to review this decision, and some authorities were given to us to show that the court in that case had overlooked a class of authorities which would have led them to a different conclusion. Believing that the verdict is right, upon the grounds already stated, and that no injustice has been done by any error of the court or jury, we have not examined the cases referred to, so as to be willing to overrule the decision in question.
New trial denied.
