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Lashaway v. Tucker

15 N.Y.S. 490 Court N.Y. Gen. Term English

Decision Majority — Hardin, P. J. · Dissent — Merwin, J.,

Contents

Majority

p. 490
Lashaway v. Tucker.
(Supreme Court, General Term, Fourth Department.
July, 1891.)

Headnote

Exemptions—Family Supplies—Corn Meal.
The word “flour, ” used in Code Civil Proc. N. Y. § 1390, subd. 4, which exempts from sale under execution “all necessary meat, fish, flour, and vegetables actually provided for family use, ” includes Indian corn meal. Merwin, J., dissenting.
Appeal from circuit court, Jefferson county.
Action by Edward Lashaway against George W. Tucker to recover for conversion of personal property claimed to have been exempt from execution. The execution was levied on a quantity of Indian corn meal, among other things. From a-judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the judgment, defendant appeals. Code Civil Proc. X Y. § 1390, subd. 4, provides that “all necessary meat, fish, flour, and vegetables actually provided for family use” shall be exempt from levy under execution against a householder. 2 Key. St. X Y. (8th Ed.) p. 1423, pt. 1, c. 17, tit. 2, art. 1, § 3, referred to in the dissenting opinion of Merwin, J., provides that “all wheat flour, rye flour, Indian meal, or buckwheat meal, manufactured for exportation in this state, shall be packed in good strong casks, ” etc.
Argued before Hardin, P. J., and Martin and Merwin, JJ.
H. Smith, for appellant. J. Lansing, for respondent.

In the course of the trial the court held that the word “flour” did not cover meal, and refused to submit a question in that regard to the jury. Proper exceptions were taken to the rulings and to the refusal. I am inclined to the opinion that an error was committed.

I think the amount of the verdict is dubious. I favor a reversal of the

Dissent

p. 491
order and judgment. Judgment and order reversed, and a new trial ordered, with costs to abide the event.

I think flour includes meal, and, under statute, meal for family use is exempt; hence I concur.

(dissenting.) In view of other provisions of the Revised Statutes, (part 1, c. 17, tit. 2, art. 1.) I think flour and meal are different articles; and the word “flour” in the exemption law was not designed to include meal; so on this I think the circuit was right; but the verdict is larger than the evidence warrants, so I assent to reversal.