95 N.Y.S. 760 | N.Y. App. Div. | 1905
The defendant, as sheriff of the county of New York, under a valid judgment-and execution, issued thereon against the plaintiff, levied upon a candelabrum, desk and safe. There was no dispute but what these articles belonged to the plaintiff, but he claimed they were exempt from levy and sale under section 1391 of the Code of Civil Procedure because he was a householder and they were necessaryprofessional instruments and furniture” employed by him in his business of. undertaker and of less than $250 in value. This claim not being recognized and the levy not being released upon
The evidence disclosés that the candelabrum was necessarily used at the funerals of persons of certain religious beliefs and I am of .the opinion that a jury would be justified in finding, upon the evidence set out in this record, that the same was a part of the “ working tools ” of the plaintiff in his undertaking business, for which reason it would be exempt under section 1391 of the Code of Civil Procedure.
The plaintiff, however, claims his exemption of the candelabrum, desk and safe as part of liis necessary “ professional instruments and furniture.” He is an embalmer as well as undertaker, but his embalming instruments were not levied upon. The business of embalming and undertaking is not a profession within the meaning of the statute, nor does the fact that an embalmer must be licensed make him a professional man: A druggist must have a license to dispense medicine, but this does not make him a professional man, unless he chances to-be a physician as well. So, in the city of New York, an auctioneer and pawnbroker must be licensed, as well as barbers and persons who conduct employment agencies, and certain others who engage in ordinary mechanical work. The term “ professional ” can only relate to some of those occupations universally classed as professions, the general duties and character of which the courts must be expected to understand judicially. (Pennock v. Fuller, 41 Mich. 153.) In no sense contemplated by the statute was the plaintiff using the candelabrum, desk or safe in the practice of a profession.
The provisions of sections 1390 and 1391 of the Code of Civil Procedure relating to exemptions are quite comprehensive and plain. By the first section referred to certain articles when owned by a householder are. made exempt, whatever their value, except that the necessary tools and implements of a mechanic and a family
I have been unable to find any authority holding that the office furniture of an ordinary business man is exempt from levy and sale by virtue of an execution. But even if the desk be deemed to be exempt, the safe was in no sense furniture. It is a convenient article for the safekeeping of papers, but is not at all necessary for the carrying on of an undertaker’s business. The plaintiff himself con. ducted his business for several years without one.
The trial justice had the power to set aside the verdict and award a new trial (Municipal Court Apt [Laws of 1902, chap. 580], § 254), and I am of the opinion, in view of the fact that the jury found in favor of the plaintiff with respect to the safe and desk, as well as the candelabrum, that he properly exercised that right.
But his order setting aside the verdict was right upon another ground. The action was to recover possession of a chattel. In such an action section 120 of the Municipal Court Act provides that the verdict must fix the damages for detention, if any, and that
The determination of the Appellate Term must, therefore, be reversed, with costs, and the order of the Municipal Court affirmed, with costs.
O’Brien, P. J., Ingraham and Lahghlin,. JJ., concurred; Patterson, J., concurred in result.
Determination of Appellate Term reversed, with costs, and order of Municipal Court affirmed, with costs.