Townsend v. Hoppock — 13 N.Y. Super. Ct. 499

Majority

p. 499

H. P. Townsend, Executor of Thos. Johnson v. Ely Hoppock.

Headnote

The defendant sued Brooks & Hopkins, had an attachment issued, and on it seized the property in question, being the property of the plaintiff’s testator. T. Jackson, and Carr & Burnett, and S. V. Moers, subsequently and severally sued Brooks & Hopkins, and had attachments issued, which were levied on the same property, but without their direction. Judgments were obtained, and executions issued in all of said actions. The sheriff refused to sell on either of the executions, unless indemnified for so doing, Carr & Burnett executed to the sheriff an indemnity bond in their own suit, and executed as sureties one given by Moers in his suit, by the terms of each of which the sheriff was indemnified against the consequences of levying and selling, under the executions, in those two actions. Johnson having, in his lifetime, sued Carr and Burnett for a forcible and wrongful taking of the property in question, the plaintiff, on the 31st of August, 1856, released them from all causes of action whatever. The present action was commenced about the 1st of July, 1852, after all the executions had been issued to the sheriff, and before the execution of the indemnity bonds.

Held, that the cause of action against Hoppock was perfect the moment the property was seized on his attachment, by his orders. That Carr & Burnett, not having participated in that wrongful taking, the release to them could not be construed to include and discharge that cause of action, and, consequently, was no defence to it.

They and Hoppock were not joint wrong-doers, in respect to the taking of the property under Hoppock’s attachment. That taking being the ground of the present action, a release of Carr & Burnett from all claims and demands against them, does not extinguish or affect Hoppock’s liability to the plaintiff.

(Before Boswobth and Hoffman, J. J.)

February 8;

February 21, 1858.

The complaint charges that on or about the 14th of April, 1852, the defendant forcibly and wrongfully took from the possession of the plaintiff, certain goods and chattels, of the value of $500, and claims damages to the amount of $1000.

The answer puts in issue the allegations of the complaint. It then justifies the taking under an attachment, in an action in the

p. 500

Supreme Court, brought by the present defendant against Brooks & Hopkins, who, as the defendant alleges, owned the property. The attachment was issued on the 18th of April, 1852, and the goods were seized upon it, on the 14th, by direction of the defendant.

On the 80th of April, 1856, the defendant was allowed to set up by supplemental answer, that the trespass complained of was committed, if at all, by the defendant and John F. Carr, and Mitford B. Burnett jointly, and not otherwise; and that, on the 31st of August, 1855, the plaintiff, by a sealed release, released Carr & Burnet from all claims, demands, and causes of action whatever.

The action was referred; the referee found in favor of the plaintiff, and from the judgment entered on his report the defendant appeals.

The facts are, in brief, these:

1. Johnson bought the goods in question on the 10th of April, 1852, of Brooks & Hopkins.

2. On the 14th of April, 1852, they were taken from the plaintiff’s possession, by the sheriff, on an attachment in favor of Hop-pock against Brooks & Hopkins, and were so taken by direction of Hoppock.

8. Three other attachments, in suits against Brooks & Hopkins, were received by the sheriff before he seized and removed the goods: one in favor of Thomas Jackson; one in favor of Carr & Burnett, and one in favor of S. Y. Moers. They were received in the order in which the plaintiffs therein are here named.

Carr & Burnett are not shown to have given any direction to the sheriff, as to levying the attachment in their favor on this property.

Judgment was obtained by Hoppock on the 24th of June, 1852, in his action against Brooks & Hopkins, and execution was issued on it on the 25th, and delivered to the sheriff on the 26th.

Each of the other attaching creditors obtained judgments in their actions, and issued executions thereon to the sheriff, who received them at the same time he received that in favor of Hop-pock, and marked them as received in the order in which the attachments had been issued.

, This action was commenced on, or about the 1st of July, 1852, after all the executions had been delivered to the sheriff.

p. 501

After all the executions had been received, the sheriff refused to sell under either of them, unless the plaintiff in each indemnified him. Bonds of indemnity, in each action, were given, and were marked by the sheriff as having been received in the order in which the attachments were received. They are all dated the 6th of July, 1852, except the one in the action of Carr & Burnett, and that is dated on the 7th. Carr & Burnett, besides signing the bond in their own action, signed a bond as sureties for Moers, in his action. The bond, in each case, indemnified the sheriff against the consequences of levying and making sale “under and by virtue of the execution.”

" The sheriff sold the property, and the proceeds paid Hoppock’s execution in full, and left $123.18, to be applied, and which was applied, on Jackson’s execution.

There was no interference by Carr & Burnett, in any stage of the proceedings, except signing these two indemnity bonds.

It further appeared that the testator of the present plaintiff brought an action against Carr & Burnett, in which he, plaintiff, declared in the same form as in this, and for taking the same property. Issue was joined in it. On the 31st of August, 1855, the plaintiff having qualified as executor of Johnson, executed to Carr & Burnett a release, general in its terms, of all causes of action whatever, for the sum of $50, as the release stated. It did not, in express terms, release the present cause of action.

The suit against Carr & Burnett was discontinued, and the consent for the discontinuance of it is dated the 7tn of Hovember, 1855.

The referee reported that Hoppock took the property on the 14th of April, 1852, its then value, and gave judgment, in favor of the plaintiff, for that value, with interest from the time of the taking. The defendant appeals. The main point made is, that, under the facts found, Hoppock, and Carr & Burnett, were joint trespassers, and that the release of Carr & Burnett, two of such trespassers, is a bar to an action against Hoppock, their co-trespasser.

E. Burloch, for plaintiff.

E. W. Stoughton, for defendant!

This action is brought to recover damages for the forcible and wrongful taking, by the defendant, of certain personal property, from the possession of the plaintiff. The complaint charges, and the referee finds, that it was taken on or about the 14th of April, 1852. It was so taken, by a deputy sheriff, on an attachment issued at the suit of the defendant against Brooks & Hopkins, and was taken by the direction of the defendant.

There does not appear to have been any actual or constructive interference, by Carr & Burnett, with the taking of the property, at the time it was taken. Nothing was done by them which could be construed into an assent, by them, to that act, or into an adoption of it, until they executed an indemnity bond to the sheriff, on the 7th of July, 1852.

The cause of action stated in the complaint, arose prior to that time. All the acts constituting it had been done before that date, and Carr & Burnett had not, up to the giving of the indemnity bond, on the 7th of July, 1852, participated directly or indirectly in those acts. The case made, states as a fact, that this action was commenced about the 1st of July, 1852, by the service of a summons and complaint. The summons is dated the 30th of June, and the complaint was verified on the 1st of July, 1852.

The complaint was, therefore, drawn and verified before the bond of indemnity which Carr and Burnett delivered to the sheriff was executed, and the fact stated in the case, as to the time this .action was commenced, taken in connection with the date of the summons and the time of verifying the complaint, imports, that this action was brought before that bond was given.

The cause of action, in this case, was complete, on the taking of the property by the deputy sheriff, on Hoppock’s attachment. That act is stated to be the cause of action. In that act Carr and Burnett in no way participated.

The indemnity bond was not required of Carr and Burnett, nor was it given by them to indemnify the sheriff against the consequences of having taken the property on .the attachments, or for his subsequent detention of it.

He declined to sell it on the executions which were delivered to him on the 25th of June, 1852, unless .the several plaintiffs would indemnify him for so doing.

p. 503

The bond of indemnity given, recites, the recovery of a judgment against Brooks and Hopkins, the issuing of an execution thereon, and in terms, is conditioned to indemnify the sheriff against the consequences of levying and selling “ under and by virtue of said execution.”

This bond, by its terms, cannot justly be said to adopt any act, or to. express the assent of Carr and Burnett to any act of the sheriff anterior to the levying of the execution, described in such bond.

But that act forms no part of the cause of action stated in the complaint. That cause of action, as has been already mentioned, accrued upon the taking of the property on the 14th of April, 1852.

The referee has charged the defendant with the value of the property on that day, and with interest on such value from that date. '

Carr and Burnett were not only, not jointly liable with Hop-pock, for that tort, but they in no way participated in it. The plaintiff could not have maintained an action against them, as being actors in, or parties to, that transaction. The release which the plaintiff gave to Carr and Burnett on the 31st of August, 1855, did not, by its general language, include that transaction. It certainly does not, in express terms, purport to release them from it, or from the damages caused by it.

I think, therefore, that as it not only does not appear that Carr and Burnett had any connection with the act constituting the plaintiff’s present cause of action, but on the contrary, as it does appear, upon the facts as found, that all they did, was done to induce the sheriff to levy an execution in their favor on the property, and to sell under such levy, and that what they did do with that intent, was done after the complaint in this action was verified ; the release given in evidence, does not affect the plaintiff’s right to recover, and that the judgment should be affirmed.