Schuler v. Roberts — 49 N.Y. St. Rep. 811

Majority

p. 811

Marie Schuler, Resp’t, v. George H. Roberts et al., App’lts.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

1. Trespass—Levy op execution.

In an action for trespass, plaintiff testified that one of the defendant firm came to her bakery and demanded of her the amount of a judg-

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meat which they had obtained against her husband, threatening to ruin her business if she refused. She refused, and the same day a deputy sheriff closed her bakery under an execution on the judgment; a witness testified that another deputy sheriff said the sheriff had a bond indemnifying for the levy. There was evidence that the defendant firm acquiesced in the levy and sought to compel payment of the judgment by it. Held, that a motion to dismiss the complaint as to the defendant firm on the ground that there was no evidence to connect them with the levy, and that they were not bound by the deputy’s admission that the sheriff had obtained bonds indemnifying him, was properly denied.

2. Same—Evidence.

In such case^ it is proper to allow an answer to a question put to the deputy sheriff in regard to the direction given to him by the attorneys of the defendant firm to make the levy.

3. Same.

And when it appears that such direction was not given by such attorneys, but by a lawyer in their employ, it is not error to refuse to strike out the answer of the deputy on the ground that the lawyer’s authority was not shown.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the court, in an action for trespass for levying on and holding for five days the bakery of the plaintiff under an execution issued on a judgment against the plaintiff’s husband.

The plaintiff testified that one of the defendants came to her store and demanded payment or security fora judgment recovered against her husband and threatened to ruin her business if she did not pay or secure it; that the same day an execution was issued and her place closed by a deputy sheriff, and that another deputy said they were indemnified, and the deputy testified that the execution was levied under the direction of a lawyer employed by defendants’ counsel.

Campbell & Murphy (James Flynn, of counsel), for app’lts ; Jacob Fromme, for resp’t.

There was no exception taken to the charge of the learned justice who presided at the circuit at which this cause was tried, and the law was correctly stated by him to the jury. There was a plain and palpable conflict between the evidence given on the part of the plaintiff and defendants in respect to the interview between the plaintiff and the defendant Roberts, on the 28th of January, 1891, and as to the interview between her and defendant (jollín and the witness Keck on the 29th of January, 1891, after the levy had been made and the store closed. The jury were judges of the credibility of the witnesses, and, having found for the plaintiff, their verdict cannot be disturbed unless it is apparent that some error was committed in the rulings of the court in the reception or exclusion of evidence, or that the verdict is so excessive as to show that it was the result of passion, malice, or prejudice on the part of the jury. The exception h> the refusal of the court to dismiss the complaint at the close of the plaintiff's case is not well taken. The court could not assume, as matter of law, upon the evidence then before it, that the plaintiff’s statements were untrue, nor dismiss the complaint on the ground that there was no evidence to connect the defendants, Rob

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crts & Collin, with the deputy sheriff; nor that they were not bound by the deputy’s admission that the sheriff had obtained bonds indemnifying him in making the levy. The motion was, therefore, properly denied. The exception to the ruling of the court, permitting an answer to the question put to the deputy sheriff in regard to the direction given to him by the plaintiff’s attorneys to make the levy, is also unavailing. The question was proper for the purpose of showing how the levy came to be made; and, even if the defendants could not be held liable, as the learned justice charged, for any wrong committed by their attorneys without their knowledge or acquiescence, the question was proper, in view of the evidence already in the case tending to show that the defendants, after learning of the levy, had acquiesced in it, and sought to compel payment by the plaintiff of her husband’s debt through its instrumentality. When it appeared that the direction to the sheriff was not given by the attorneys, but by Mr. Hallen, a lawyer, who was in their employ, it was not error to refuse to strike the testimony out on the ground that Hallen’s authority was not shown. Hallen had had chai’ge of the supplementary proceedings under which the plaintiff had been .examined as a witness, and there was nothing to justify the assertion that the defendants’ attorneys did not authorize and sanction his proceedings. The evidence already given certainly tended to show that the execution had been issued at the instigation of the defendants. It was a circumstance from which the jury could fairly infer that the execution was issued by their direction to the sheriff; that the levy was made after Roberts had had the interview with the plaintiff at the store, and on the same day.

The defendant Collin, at the interview on the 29th of January, 1891, the next day, saw that the store was locked up; and, as the case stood on the plaintiff’s testimony, he had not, in any manner, disavowed the levy. On the contrary, the plaintiff had' testified that he requested her to sign a paper, and stated that if she would do so he would, within an. hour, open her place of business, and that she could then go on with the business. After that, as the plaintiff testified, Keck, the defendant’s salesman, who had accompanied Collin, was at the store between January 29 and February 2, and nothing was done towards opening the store until the 2d of February. It is clear, then, that, if the plaintiff’s testimony is to be believed, the defendant Collin had had personal notice of the locking up of the store, under some process in the defendants’ favor, as early as January 29, 1891; that he did not disavow it; and it might clearly have been inferred that the process was issued by the direction of himself and his partner. Foo Long v. Surety Co., 41 St. Rep., 873 ; Duke of Brunswic k v. Slowman, 8 Man., G. & S. 317. At the dose of the case the defendants’ counsel moved for a direction of a verdict in favor of the defendants, Roberts & Collin, and upon the denial of the motion excepted. He also moved to dismiss the complaint as to those defendants; which motion was refused, and he excepted. In' these rulings we find no error. The ease made by the plaintiff and her witnesses had been contradicted

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by the defendants and their witnesses, but the court could not usurp the functions of the jury and dispose of the case in the defendants’ favor. It adopted the proper course, and submitted the case to the jury, under a charge in which no error was complained of and to which no exception was taken. The verdict which the jury rendered was one which it was competent for them to give. If the plaintiff and her witnesses were worthy of belief, she had been the victim of a gross wrong, instigated by the defendants, Roberts & Collin. And the case was one in which the jury were not limited to awarding merely compensatory damages. In the exercise of their power, under the well-established rules of law, they have awarded to t}le plaintiff vindictive damages; and as there is no evidence of passion, anger or malice apparent in their verdict, which under equally well-established rules permits us to overthrow it, we are of the opinion that the judgment below was correct, and must affirm both it and the order appealed from, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.