Ebenreiter v. Dahlman

The plaintiff claimed to be the owner of the attached property by virtue of a bill of sale executed by the attachment debtor before the levy. The bona tides of this conveyance was the principal issue on the trial, and the verdict of the jury established the plaintiff’s right. She was therefore entitled to recover the value of the stock and fixtures seized by the sheriff, and, having been excluded by him .from her place of business, is also entitled to the loss of profits while he remained in possession.

The complaint claimed $1,000 damages, of’which $750 was for the value of the property seized, and $250 for injury to the business. The verdict was for $700, and appellants argue that the proof fails to sustain it.

The first objection is that there was no proof of the value of the fixtures. These were described in the evidence as “a double ice box, made of hard wood. It was a double decker, with brass trimmings. There was a large, big marble in the back, and two large marble benches, large marble slabs in the window, three square blocks, back railing, window railing, three scales, and a desk, corn beef stand, poultry box, and so on, tools, gas fixtures, meat racks with hooks attached, knives, cleavers, tools, swords.” The question whether there was evidence to sustain a verdict for the value of the goods so enumerated and described is not raised by an appropriate exception. We cannot consider it upon the appeal from the order refusing a new trial, because we have no jurisdiction of such an appeal. Eckensbergen v. Amend, 10 Misc. Rep. 145 , 30 N. Y. Supp. 915 ; Pharo v. Beadleston, 2 Misc. Rep. 424 , 21 N. Y. Supp. 989 . We can only review an order granting a new trial. Code, § 3191, subd. 2. Appellate power with respect to judgments upon vdrdicts in the city court is limited to a review of errors of law upon exceptions; and, although a verdict without evidence involves error of law, to correct it an exception presenting the question of the sufficiency of the proof is indispensable. Sweetzer v. Cameron, 3 Misc. Rep. 71 , 22 N. Y. Supp. 555 ;

The objection that there was no evidence of the value of the fixtures was made in a motion to dismiss the complaint; but this was. not the proper way to raise the question, because there was evidence of the value of the stock and the damage to the business, and the complaint could not be dismissed. As the denial of the motion,, therefore, was proper, the exception to it presents no error.

After the denial of that motion, the case was given to the jury,, without an exception to the submission of the question as to the value of the fixtures. The court charged, at the defendants’ request, that the price named, in the bill of sale was not evidence of' value; but there was no request for an instruction that there was no other evidence of value, nor an instruction that no verdict could be rendered for the fixtures. By not asking for such specific instruction, and by not excepting to the submission of the claims for these articles, the defendants acquiesced in a submission of the question of the value of the fixtures upon such evidence as the jury had concerning their kind, quality, and condition. If that evidence was insufficient, the question is not presented by appropriate exception.. On the question of the value of the stock there was competent and sufficient evidence.

It is alleged that the court erred in certain instructions to the jury on the question of value, which were made after passing upon the plaintiff’s requests. But here, again, we find the want of an exception which points out the error. The record states that "defendants’ counsel excepts to that portion of the court’s charge which followed the requests to charge made by the plaintiff’s counsel, and to each part thereof.” This general exception is ineffectual. The portion of the charge referred to embraces several subjects, namely, the effect of the plaintiff’s going into possession, absence of fraud on her part, and of knowledge of any fraud on the part of the vendor, absence of circumstances to arouse suspicion, her right to recover if the sheriff dispossessed or ejected her, and took possession of the property, besides an instruction that the jury were - the sole judges of the value of the goods and chattels, notwithstanding the-testimony which they must consider, as it might aid them in arriving at the value, but that they were to say from the testimony and their knowledge what the value of the property was. As the defendants’ exception did not call the attention of .the court to the particular point now sought to be raised, namely, alleged error in the instruction as to value, that point cannot now be raised upon appeal.

Upon the question of damage sustained by the seizure of the plaintiff’s place of business, and the consequent suspension of her trade, there was evidence that the daily profits of the business averaged ten to fifteen dollars. This evidence was given by the wife of the attachment debtor, who had acted as his cashier, and who after the-sale to her mother, this plaintiff, served in the same capacity. Evidence was given of the expenses of the business and the amount of sales. The chief question upon this branch of the case is whether

It is objected, however, that, if the sheriff were liable for injury to the business, his indemnitors are not, because their bond to the sheriff did not authorize him to commit any overt act except the levying, attaching, or making sale of the personal property of the debtor, and for entering in the shop, store, building, or other premises for the taking of such property. But the bond of indemnity thus authorized a trespass upon the premises where the property was situated, and the indemnitors are bound by the acts of the sheriff in directly carrying out the authority conferred upon him. A distinction cannot be made between the exercise of his judgment in remaining in possession of the premises, in order to keep or sell the goods in that place, and in simply entering to take the goods. He was empowered to make a seizure, and to do acts which tended necessarily to interfere with and bréale up the business for the time being, and to exclude the owner from her possession while so engaged. He was set in motion by the indemnitors, and they cannot avoid responsibility, because he took complete possession of the premises, and retained them longer than was necessary to remove the goods. As well might they claim exemption as to property which he permitted to be stolen or destroyed while in his custody.

A number of exceptions appear in the record, but none of them present error for which a reversal can be asked. Nearly all the objections-to evidence were, on the ground that it was incompetent, irrelevant, and immaterial, and that objection, in the majority of cases, failed to specify the particular error complained of. The bill of sale from Bheinfeldt to the plaintiff was admissible, because it was executed and acknowledged, and the fact that the plaintiff said that it was the paper she signed, when her signature was not on it, did not require its rejection. The testimony as to what the sheriff said when he made the levy was admissible as part of the res gestee. Any prejudice to the defendant’s case by his admissions could have been obviated by the request for a proper instruction to the jury to disregard the admission. What was said and done by the plaintiff at the time she took possession under her bill of sale was competent for the same reason. Allowing identification by the plaintiff of her savings banks books was not error, as they were not

The objection that the witness Holsten was allowed to state the profits upon various provisions sold at retail was not put upon the ground that it was a statement of a conclusion; but, if it had been, the objection would not be good, because it was manifest from the prior questions and answers of the witness that he was simply giving the difference between the wholesale and the retail price of such provisions.

It is claimed that the defendants were prejudiced because the court refused to give a certain instruction requested by'the defendants unless the plaintiff consented, and that this was calculated to deprive (he instruction of all force, as suggesting to the jury that the rule stated was a matter merely of agreement between the counsel, and not a rule of law. No such point was made upon the trial, and is not presented by any exception.

We find no errors in the rulings or the charge, raised by competent exceptions, which require a reversal of the judgment.

Judgment affirmed, with costs. All concur.