Carpy v. Edlinger — 5 N.Y.S. 419

Majority

p. 419

Carpy v. Edlinger et al.

(City Court of New York,

General Term.

May 31, 1889.)

Headnote

Execution—Claims by Third Persons.

Where the jury found, that the judgment debtor had no title to the property seized under execution, his judgment creditors acquired no right therein by their levy, and cannot complain that the jury so found.

Appeal from trial term.

Action by Charles Carpy against Augustus H. Edlinger and others, to re■cover property seized under execution. Verdict and judgment for plaintiff, and defendants appeal.

Argued before Behrbas and Holme, JJ.

B. Lewinson, for appellants. Solomon, Kantrowitz & Fsberg, for respondent.

The defendants are indemnitors of judgment creditors of Frank Maurer, and the property claimed herein was levied upon by the sheriff by virtue of an execution against one Frank Maurer. The sheriff was sued originally, and the defendants as indemnitors were substituted in his place. The jury found that the title was not in the judgment debtor, and under the evidence John Maurer, the brother of the judgment debtor, got but ■a qualified or conditional title, which was by force of the arrangement defeated when the sheriff seized the property. John Maurer did not intervene •as a claimant, and did not ask to be made a party defendant, nor did the present defendants seek to join him as a party. He does not complain of the judgment, and, as the jury found that Frank Maurer had no title, the defendants, ns his judgment creditors, acquired no right to the property, and cannot se

p. 420

piously complain that the jury so found. No error was committed, to their prejudice. It follows that the judgment appealed from must be affirmed,, with costs.