Lashaway v. Tucker — 39 N.Y. St. Rep. 680

p. 680

Edward Lashaway, Resp’t, v. George W. Tucker, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

Execution—Exemption.

The word “flour” includes meal, and hence meal for family use is exempt from levy and sale under execution.

(Merwin, J., dissents.)

Verdict in the Jefferson circuit. Action to recover for the conversion of certain personal property claimed to have been exempt from execution. The defendant justified under an execution issued on a judgment recovered in a justice’s court in favor of the defendant here against the plaintiff here for $8.18 damages. In the case in hand the jury rendered a verdict for $51.78, and the circuit judge denied a motion for a new trial made upon the minutes.

Hannibal Smith, for app’lt; J. Lansing, for resp’t.

—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. (2.) I think the amount of the verdict is dubious. I favor a reversal of the 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 the statute meal for family use is exempt; hence I concur.

—In view of other provisions of the R. S., part 1, chap. 17, tit. 2, art. 1,1 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 right, but the verdict is larger than the evidence warrants, so I assent to reversal.