Weber v. Ferris

37 How. Pr. 102 | New York Court of Common Pleas | 1868

By the court, Barrett, J.

This appeal presents no questions of law and, after a careful review of the case, we find ample evidence to sustain the referee’s findings of fact.

The defendants as indemnitors and directors of the sheriff are liable as original trespassers (Herring agt. Hoppock, 15 N. Y. R., 409; Fonda agt. Van Horne, 15 Wend., 631; Davis agt. Newkirk, 5 Den., 92; Root agt. Chandler, 10 Wend., 110; Allen agt. Crary, 10 Wend., 349). There is nothing in the point that the goods had been previously levied upon under a prior execution. That was a mere formal and technical levy which the officer would not have pressed without an indemnity. It was made in the ordinary routine of duty, without instructions from the plaintiff in the execution. The seizure and salle of the goods and their consequent loss to the plaintiff resulted from the special instructions and indemnity given, upon their execution, by the present defendants. The application of the proceeds of the trespass was immaterial and the fact that they went to satisfy the first execution did not tend to mitigate the damages. The trespass consisted in the seizure of all the property, and the defendants, as directors and indemnitors, are liable for its full value. If they were unwilling to assume so great a responsibility, the particular part of the property upon which a levy was to be risked should have been pointed out-and separated.

The judgment should be affirmed.