Zoller v. Grant — 19 N.Y. St. Rep. 311

Majority

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George L. Zoller and George Lupert, Resp’ts, v. Hugh J. Grant, Sheriff, etc., et al., App’lts.

(New York Superior Court, General Term,

Filed December, 1888.)

Headnote

1. Attachment-Levy on partnership property under.

The seizure and levy by a sheriff, under an attachment or execution against one person, upon the entire property of a firm, as the sole property of the debtor, is not justified by showing that the debtor has an interest in the property as a co-partner.

2. Same—When sheriff is a trespasser.

When the sheriff, instead of levying on the debtor’s interest,levies upon and seizes the property of a partnership, as the sole property of the debtor, he is a trespasser.

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3, Practice—Appeal from judgment

A motion for a new trial was made after the jury had brought in their verdict, hut no order denying the motion was entered. Held, that the appeal being from the judgment only, the court would consider only the questions of law p. esented by the exceptions, other than the exception to the ruling denying the motion for a new trial.

Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury at a trial court.

The action was brought by the plaintiffs, who allege that they were’ owners of certain personal property, to recover damages for the taking of said property by the sheriff under a warrant attachment issued against a third party.

George L. Zoller, George Lupert and Hugh Alexander, on the 24th day of September, 1885, formed a copartnership to carry on the business of the sale of furniture in the city of New York, under the firm name of Zoller, Alexander & Co., with a capital of $1,012 in money contributed by George L. Zoller, and about $500 to $600 worth of furniture contributed by George Lupert, and had their offices and warerooms at No. 67 Prince street in the city of New York. On the 21st day of September, 1886, while in the peaceable possession of these premises and of a stock .of goods in their warerooms, the sheriff, Hugh J. Grant, his deputies, assistants and agents, took possession of the premises and attached the property there stored. The sheriff informed the firm that the property was seized on the ground that it belonged to the Lupert & Kline Furniture Company, a corporation of Williamsport, Pa., and notwithstanding their protests and statements that the company had no interest in the property, continued to hold the property until the 14th day of October, 1886, when its possession was returned to the firm by consent, on their depositing in the Metropolitan Trust Company $730, to be held in place of the goods levied on, and to be disposed of in accordance with an agreement on the determination of this action.

Everything belonging to Zoller, Alexander & Co., and in their warerooms at 67 Prince street, N. Y., was levied on by the sheriff and included their office furniture, bought from parties in New York, and goods bought from a firm in Philadelphia, and from parties in New York and Jersey City, as well as a stock of goods bought of the Lupert & Kline Furniture Co.

During this time the sheriff did not move the goods, but occupied the premises belonging to the firm. The business of Zoller,- Alexander & Co. was completely terminated. They were unable to sell any of their goods, or deliver those which had been already sold, and they simply had

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the right of ingress and egress to the building. During all this time, however, their expenses, consisting of rent, salaries of employees, etc., continued.

The defendants, Siegfried and Samuel Binswanger, are the sheriff’s indemnitors.

Prior to the commencement of this action, the firm of Zoller, Alexander & Co. was dissolved by mutual consent, and Hugh Alexander transferred to the plaintiffs in this action all his interest in his claim for damages which the firm suffered by reason of the said attachment.

On or about the 7th day of December, 1886, the plaintiffs began this action for damages sustained by reason of the attachment and seizure of their property by the sheriff, and on the 25th day of March, 1886, the jury rendered a verdict in favor of the plaintiffs, and judgment was thereupon entered.

The warrant of attachment only is offered in evidence. There was no order entered denying the motion tor a new trial, and this appeal is simply from the judgment.

Cochran & Clark and Stine & Caiman, for app’lts; E. B. & C. P. Cowles, for resp’ts.

Although a motion for a new trial was made and denied after the jury had brought in their verdict, yet no order denying the motion was entered, and the appeal is only from the judgment. We shall therefore consider only the questions of law that are presented by the exception other than the exceptions that were taken to the ruling of the judge denying the motion for new trial.

It is not necessary for us to determine whether the Lu-pert & Klein Furniture Company, who the defendants claim was either the owner of the property of a member of the firm of Zoller, Alexander & Co., in whose possession the property was at the time it was taken, was or was not a member of said firm of Zoller, Alexander & Co., for the stipulation between the parties which was offered in evidence provided that the fund in suit shall be paid over to the plaintiffs, if it shall be decided that the property taken by the sheriff under the attachment was not the property of the said Lupert & Klein Furniture Company. If the Lupert & Klein Furniture Company was a member of the firm of Zoller, Alexander & Co., and if the said property belonged to the firm so constituted, then under the stipulation the fund must be paid to plaintiffs, because the Lu-pert & Klein Furniture Company was not the sole owner of the property.

In order to succeed in the action, the defendants must show that the Lupert & Klein Furniture Company was

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the owner; that is the sole owner of the property taken under the attachment. In fact, the only question litigated on the trial was, whether the Lupert & Klein Furniture Company was or was not the owner of the property; but even if the Lupert & Klein Furniture Company was a member of the firm of Zoller, Alexander & Co., the levy of the sheriff was illegal

The seizure and levy by a sheriff under an attachment or execution against one person upon the entire property of a firm as the sole property of the debtor is not justified by showing that the debtor has an interest in the property as a co-partner. The power of the Sheriff for the purpose of rendering the levy upon the interest on one partner in the co-partnership effectual to take possession of the whole property^ is merely incidental to the right to reach the debtor’s interest, and is to be exercised as far as possible in harmony without hostility to the rights of the other partners. Therefore, when the sheriff exceeds this limit, and instead of levying on the debtor’s interest levies upon and seizes the property as the sole property of the debtor, he is a trespasser. Atkins v. Saxton, Sheriff, 77 N. Y., 195 .

It was not error for the trial judge to allow the plaintiffs to show what took place between them and Mr. Deem, the chairman of the Lupert & Klein Furniture Company. Exhibit A, which was offered by the defendants showed that Mr. Deem was the chief officer in the said company,. and the question called for testimony that might explain the relation between the plaintiffs and. said company. The objection at folio 150 seems to have been taken after the question had been answered, and for that reason if for no other is too late; it is true that the question at folio 155, to which the defendant objected, called for the witness’ interposition of a written contract, which contract was in evidence, but no one was harmed by that, because the witness-put the right construction upon the contract. Under the contract the Lupert & Klein Furniture Company had nothing to do with the losses in the business except as those losses tended to decrease the amount of profits otherwise coming to it.

It may be that the firm of Zoller, Alexander & Co., and the Lupert & Klein Furniture Company, as against third persons constituted a new firm without a name; but that question was not litigated upon the trial.

By the stipulation above referred to, the plaintiffs are entitled to recover damages, unless it appears that the Lupert & Klein Furniture Company was the sole owner of the property; and all the litigation on the trial was directed to-showing on the part of the defendants that they were such owners, and on the part of the plaintiffs that they were not such owners.

No question arises as to the amount of damages. It was

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conceded on the trial by the defendants that the damages against the defendants, in case there was a verdict, should be, in addition to the amount deposited with the trust company, such damages as were proved for the detention; or, to use the words of the admission, the damages ought to be $730 (which was the amount deposited under the stipulation), and such damages for the unlawful taking and detention as are proved. Those damages were itemized, and part of them were stipulated; for instance it was stipulated that there was $133.30 due for rent and that the salary of the bookkeeper was $10.70. These sums added to the $730 and the other damages that were proved would not make the verdict excessive.

The judgment is affirmed, with costs.

Sedgwick, Ch. J., concurs.