16 N.Y.S. 168 | New York Court of Common Pleas | 1891
This action was brought to recover a wagon claimed to be exempt from levy and sale, and seized by the defendant Farley, a city marshal, under an execution directed to him, issued upon a judgment recovered by his co-defendants and indemnitors against the plaintiff. 2STo question arose upon the trial concerning the recovery of the judgment, the issue of execution thereon, the seizure of the wagon thereunder, and service, before the sale, on the marshal of a notice by the plaintiff, claiming the property as exempt, and demanding its return; these facts being conceded. The defendants limited their defense to the contentions now urged for reversal, to-wit, that the evidence was insufficient to show the wagon to be exempt by law, and that because of plaintiff’s alleged denial of ownership at the time of the
The defendant Parley testified that at the time of his seizure of the wagon the plaintiff stated to him that it belonged to his wife, and in answer to this testimony the plaintiff stated upon cross-examination by defendants’ counsel that he had no conversation with Parley at the time of the levy, and that he did not remember having stated to Parley that he did not own the wagon. While the plaintiff’s denial of the statement imputed to him may not have been as positive as the defendant Parley’s assertion that it was made, that fact may be taken into consideration in determining the degree of credibility which should be attached to the denial; but the lack of a more explicit denial would not warrant an assumption that Parley’s testimony was thereby left unchallenged. So, also, as Parley’s testimony was that of an interested witness, it was within the province of the trial justice to reject it, though wholly uncontradicted, (Elwood v. Telegraph Co., 45 N. Y. 549; Kavanagh v.
Another proposition made by the counsel for appellant, and to which we do not accede, is that, as it appeared upon the trial that the wagon levied upon had not been in actual use by .the plaintiff for some six weeks prior to its seizure, the plaintiff had lost the right to claim its exemption. The non-use of the wagon was sufficiently explained by the fact that it was in need of repair, and that the plaintiff was at the time using a borrowed wagon, while awaiting the accumulation of sufficient means to enable him to meet the expense of repairing his own. It would seem absurd to hold that the wagon possessed the attribute of exemption when fit for Use, and lost it when temporarily in disuse, while awaiting or undergoing repairs.
A further ground urged for the reversal of the judgment appealed from is that the trial justice erred in granting the plaintiff’s motion, made during the progress of the trial, to continue the action as one to recover a chattel. In the absence of written pleadings, we are at a loss to understand why this motion was made, or what need there was for granting it. The justice’s return states that the action was brought “to recover a wagon.” This was, in every legal sense, an action “to recover a chattel, ” and the granting of a motion allowing it to be continued as such did not in any respect change the issues or the nature of the relief-sought to be obtained, and the defendants could not, therefore, have been prejudiced. The trial justice should, however, have rendered judgment for the plaintiff in the alternative, that the plaintiff recover possession of the wagon, and for the value thereof, as ascertained on the trial, in case a delivery could not be had, instead of a judgment absolute for the value of the chattel. Stauffv. Maher, 2 Daly, 142; Code Civil Proc. § 1730. The omission to render judgment in the alternative is an irregularity, however, which may be cured by the appellate court by a modification of the judgment appealed from, and does not necessarily call for reversal. Stauff v. Maher, above cited; Fitzhugh v. Wiman, 9 N.Y. 559; Wood v. Orser, 25 N. Y. 348-360; Code Civil Proc. § 3213. The other exceptions taken by the defendant at the trial, and not hereinbefore specially referred to, prove upon examination to be without sufficient merit to require discussion. The judgment appealed from should be modified by making it in the alternative, that plaintiff recover possession of the wagon for which this action was brought, and, if delivery thereof cannot be made, then for the sum of $65, the value thereof as found by the justice, and, as so modified, the judgment .should be affirmed, with costs.