47 N.Y.S. 503 | N.Y. App. Div. | 1897
The plaintiff brought.this action to recover damages for the conversion of certain articles of personal property. The property in question was seized and sold by the defendant Gear, a constable, who claimed to justify such act by virtue of an attachment issued against the owner of the property. After the seizure, and while Gear was in possession, the owner of the property transferred title to the same to the plaintiff by a written bill of sale. The plaintiff thereupon demanded possession of the goods from Gear, and forbade a sale.’ There is no dispute but that one Shire was the owner of the property when the seizure was made, and that such ownership continued until he transferred the title thereto to the plaintiff. "Upon claim of title being made by the plaintiff, Gear required a bond of indemnity before making the sale, and the defendants Batten and Badenhop thereupon gave the required bond, and the property was sold.. The defendants answered separately, but in none of the answers is it averred, that any action was commenced by any person against Shire, or that any attachment was issued or levy made thereunder, or that any judgment was- obtained in any actions. Mor was any attempt made upon the trial to show any judgment or execution. A paper was produced which purported to have been issued by a justice of the peace, in an action wherein Richard Batten was plaintiff and Robert
The defendants are equally unfortunate in attempting to raise the issue that the plaintiff as an attorney was prohibited from purchasing the property. The averment of the answer is that while Gear was in possession of the" property under an attachment, the plaintiff drafted the bill of sale from Shire to himself, and procured its delivery “ with the intent on the part of the plaintiff to bring this suit.” This averment is insufficient. The language of the prohibition is “with the intent and for the purpose of bringing an action thereon.” (Code Civ. Proc. § 73.) Mere intent to bring suit upon a claim does not offend against this statute. There must
The judgment should be affirmed, with costs,
All concurred.
Judgment and order affirmed, with costs.