First National Bank v. Stengel

Headnote

First Nat. Bank of Blanchester v. Stengel, 185 App. Div. 906 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 8, 1918, affirming a judgment in favor of defendant entered upon a decision of the court at a Trial Term, a jury having been waived. This action is the outgrowth of another action wherein Harry S. Gray was plaintiff and Dewey Brothers Company, defendant. In said action a warrant of attachment was duly issued on March 28,1917. Defendant in this action, as sheriff, attached a car of grains, moving in interstate commerce, having been consigned by Dewey Brothers Company to themselves at Spring-ville, N. Y., with directions to notify J. H. Gray Milling Company. The goods were levied upon and taken into the custody of the defendant sheriff upon the 28th day of March, 1917, but the bill of lading was not. Dewey Brothers Company, learning of the attachment, recalled the biff of lading and made out a new draft, and deposited the same as a portion of a deposit totaling $6,211.69, with plaintiff on the 31st day of March, 1917. The deposit slip had printed thereon, “ Checks and drafts on other banks eredite,d subject to payment.” The draft and bill of lading were returned to Springville, N. Y„, and on April 2, 1917, the warrant of attachment having been amended, the sheriff took into his custody the draft and bill of lading. Dewey Brothers Company defaulted in the original action, the goods were sold and plaintiff instituted this' action upon the theory that the sheriff by the levy converted its goods.