115 N.Y.S. 829 | N.Y. App. Div. | 1909
The action was brought to recover damages for the| alleged conversion of a quantity of potatoes taken by George' ^'/"ilson, a constable, under and by virtue of an execution issued agáinst the property of the plaintiff.- The evidence disclosed that th4 plaintiff was
He testified that he did not tell the drivers to get any of the plaintiff’s potatoes; that he told them that George Wilson would tell them what to do, and gave them no other instructions. It also appeared that all the acts of the drivers were done while assisting the constable in taking possession of the property under his levy, and that they acted under his direction and for his benefit and convenience.
The plaintiff claimed that the potatoes were exempt under section 1390 of the Code'of Civil Procedure, and sought to charge the defendant as a trespasser, upon the theory that he was responsible for the acts of the drivers in taking and removing the property whether they were working for him or the constable.
I think there was sufficient evidence to warrant the jury in finding that the defendant did not sustain the relation of master to the drivers so as to make him liable for their acts in assisting: the constable.
It has long been the settled law in this country as well as in England that a party is not responsible for the wrongful acts of another merely because the latter was at the time in his general employment; -that in order to establish the liability of. one person for an injury caused by the negligent or tortious act of another it must be shown that the relation of master and servant existed between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to the very transaction out of which the injury arose. (Milligan v. Wedge, 12 Ad. & El. 737; Quarman v. Burnett, 6 M. & W. 499; Wyllie v. Palmer, 137 N. Y. 248; Higgins v. W. U. Tel. Co., 156 id. 75.)
The decisions are uniform in the assertion that the test is, who conducted and supervised the particular work the doing of which, caused the injury or damage. In the Higgins case Judge O’Brien
It seems to me clear that the evidence in this case justified a finding that the drivers of the teams were not the servants of the defend-' ant on this special occasion in any sense that would render him liable to the plaintiff for their acts. This fact, however, was not absolutely essential to 'the defense. The verdict and judgment can he sustained on the ground that there was not sufficient evidence to prove an exemption, for it is a familiar principle that process regular on its face issued by a court having jurisdiction not only protects a ministerial officer for acts done under it, but those whom he calls to his assistance in the execution thereof.
Section 1390 of the Code provides that “ All necessary meat, fish, flour, groceries and vegetables actually provided for family use ” are exempt from levy and sale. The word “ necessary,” as used in this provision, cpialifies the extent of the exemption. It is not all the meat, groceries- and vegetables provided for family use, but so much as a prudent man would ordinarily keep on hand for family use.
The plaintiff testified that at the time of the levy he had in his possession between one hundred and one hundred and twenty-five bushels in the pit and two or three bags of other potatoes, and that it took “ about seventy-five bushels of potatoes for one year for himself and family.” The evidence on the part of the defendant tended to show that twenty-seven sacks, each'holding between one and one-half and two bushels, and forty or fifty bushels, loose in the pit,
I am of opinion that their verdict upon this question of fact is controlling and that the judgment of the County Court should be affirmed, with costs.
Judgment unanimously affirmed, with costs.