61 N.Y. 245 | NY | 1874
The stock of goods of the plaintiff was, near midnight on the 8th day of December, 1869, under several attachments issued out of the Marine Court of the city of New York, at the instigation of the defendants, seized and carried away, by the sheriff of that city, or by one of his deputies aided by a sort of possecommitatus, of which the defendants may be said to have formed a part. The attachments under which this proceeding was conducted were either irregular or void, and two days afterwards vacated by the court, from which they issued. To whatever extent they may have protected the officers, they offered none to the defendants, and the act was one, so far as they are concerned, *247
of an apparently unmitigated trespass. (Kerr v. Mount,
The plaintiff's property was, after its seizure, sold for the benefit of the defendants upon some execution afterward obtained, and it seems that they were the persons very properly *248
called upon to respond. It is so far apparent that the plaintiff's property was wrongfully taken and never returned, or offered to be, nor any compensation in any form tendered. It was conceded that all the proceedings against the plaintiff in the Marine Court, under color of which the trespass was committed, had been terminated, yet it is claimed that soon after and before the commencement of this suit some proceedings were had in the Court of Common Pleas of the city of New York, on the part of the defendants, by which the property, before unlawfully seized, was taken by attachment issued from that court, and that some motion to vacate these attachments was, in that court, denied. Without undertaking to criticise the vagueness of the offer of proof supposed to present the question now suggested as a defence, I propose for a moment to consider, in its broadest terms, the proposition contended for on the part of the defendants, and it is, in substance, this: A creditor may, without warning, in the night or the day, go to his debtor's place of business with a sufficient force and, without legal authority, seize and carry away all his property, break up his business, retain the property, bring some sort of suit, and finally have it sold by a sheriff, and then say this defends the violation of his debtor's legal rights. If this may be done all our laws relating to attachments against fraudulent debtors, and the care and caution under which such proceedings are allowed and sustained by the courts, may as well be repealed and the whole system abandoned; and it will come to this: One creditor by force takes, at his pleasure, all the property of his debtor and holds it against all the world until by some legal process he may have it seized, under the color of some form of law, and sold and converted to his use. In such case the diligent creditor, in the law, will have to be regarded as the trespasser who asserts his supposed rights by the strong hand. Our judicial system has not hitherto approved this extraordinary process, in any form. It has been considered, in the courts, how far property illegally taken, and subsequently seized and sold under process by a third party, who was a creditor of the *249
owner, might be used as a defence in an action for the wrong. If the wrong-doer was not in connivance with the third party, it has been held that the fact of the taking by the third party might be used in mitigation of damages. (Otis v. Jones, 21 Wend., 394;Lyon v. Yates, 52 Barb., 237; Peak v. Lemon, 1 Lans., 295; Higgins v. Whitney, 24 Wend., 379; Sherry v.Schuyler, 2 Hill, 204; Ball v. Liney,
The plaintiff was plainly entitled to recover, as a part of her damages, the fair retail value of the goods unlawfully taken. That was the nature of her business as a merchant, and the goods were, doubtless, purchased with reference to it; and, even if the exception to the charge, in that respect, can be said to have any point, it was not well taken; nor were any others, so far as I can discover.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.