Kamena v. Wanner — 13 N.Y. Super. Ct. 698

Majority

p. 698

John Kamena v. Wanner and Thompson.

Headnote

When a constable, on an attachment issued out of a Justice’s court against one person, seizes and removes property found in the posseesion of another, and the latter claiming to be the owner, and desiring to so proceed under Part 3, Title 4, § 31 of the Revised Statutes, as to perfect a right to have the property restored to his possession, he must, among other things, give a bond in a penalty equal to double the value of the property attached, though such value be $2800, and the debt which it was seized to satisfy be only $421. In such a case a bond in the penalty of $1000, though correct in all other respects, and duly approved and tendered to the constable attaching, will not make it his duty to deliver the property attached to such claimant, and consequently, will not make his refusal to deliver it to such claimant a wrongful act on his part, for which such claimant can maintain an action against him.

(Before Bosworth, Slosson, Woodruff, and Pierrepont, J.J.)

March Term, 1858.

This action comes before the court on an appeal taken by the defendant, Wanner, to an order made at Special Term, overruling his demurrer to the amended complaint, and to the second cause of action stated therein.

The complaint stated as a first cause of action, that, on the 5th of February, 1857, the defendant, Thompson, being a constable, by virtue of an attachment issued out of the Marine Court, of the city of New York, in favor of the defendant, Wanner v. one Waltje Kamena, to collect $421 and interest, from November 10, 1856, “ at the instigation, under the instructions, and in the presence of

p. 699

the said defendant Wanner, attached, (certain personal property of the plaintiff) of the value of $2800,) and removed the same from (the possession of the plaintiff,) and converted the same to the use of said defendant.”

It then stated as a second cause of action, that after such seizure, and on the 12th of February, 1857, the plaintiff claimed the said property as owner, and to obtain possession of it, made and executed with sureties a bond to said Wanner, in the penal sum of $1000, payable to him or his attorney, executors, administrators, or assigns, which bond recited the seizure of said property by Thompson, a constable, by virtue of said attachment, and that the plaintiff claims the goods so attached as his property, and contained a condition, that “in a suit to be brought on this obligation within three months from the date hereof, the said John Kamena, (the plaintiff,) shall establish that he was the owner of the said goods at the time of the said seizure, and in the case of his failure to do it, the said John Kamena shall pay the value of the said goods and chattels with the interest, then his obligation to be void, otherwise of force.” That said bond, so executed, was.thereupon tendered to the Justice of the Marine Court who issued said attachment, and afterwards to A. A. Thompson, also a Justice of that court, for their approval; that each of them indorsed his approval thereon, and on the 3d of May, 1857, the plaintiff tendered and delivered to the defendant, Thompson, the said bond so approved, and demanded a return and delivery to the plaintiff of the property so attached, “ but said defendant, Thompson, acting under the advice and instruction'of said defendant, Wanner, and at his special instigation, at all times wrongfully refused to accept said bond and return said property.” The complaint then stated the value of the property to be $2800, and the damages to the plaintiff “ arising from said seizure and conversion, (to be) the further sum of $500,” and concluded by demanding judgment “ against the said defendant for the sum of” $3300, with the costs of the action.

The defendant, Wanner, put in an answer to the first cause of action, denying the allegations of the complaint in that behalf, which answer also alleged that the bond, so approved and tendered, did not conform to the requirements of the Statute, nor confer a right on the plaintiff to have a return of the property, or

p. 700

a right of action against either defendant, by reason of the refusal to return the property.

The same defendant also demurred “ to the said amended complaint and second specification of cause.of action,” on the ground that several causes of action have been improperly united. The first cause of action being one against both defendants as joint tort-feasors, and the second being against Thompson only for his unjust refusal to return the property, a cause of action which does not affect Wanner.

Mr. Justice Hoffman, on hearing the demurrer at Special Term, overruled it, and ordered judgment for the plaintiff thereon. From that order (or judgment) the defendant, Wanner, appealed to the General Term.

John S. Jenness, for plaintiff and respondent.

James M. Sheehan, for Wanner, appellant.

This is an appeal from an order of the Special Term overruling a demurrer. The plaintiff sues Thompson, a constable, and one Wanner, who was plaintiff in an attachment against Waltje Kamena; and alleges in the second count of his complaint, that the constable having levied upon the plaintiff’s property by virtue of an attachment, that he, the plaintiff, as claimant of the property, tendered a bond in conformity with the statute, and the said constable refused to deliver to him the property, but sold the same, and that Wanner instigated the constable to these acts; that the bond tendered was in the penal sum of $1000, and that the property so seized and required to be delivered on the tender of the bond was of the value of $2800. The complaint prays judgment in the sum of $3300.

The defendant Wanner, demurs to this count.

The bond required by the 31st section of Part III. Title 4 of the Revised Statutes, requires that the bond shall be “in a penalty double the value of the property attached.” Section 34 shows clearly that the statute contemplates protection to the real owner of the property, as well as to the plaintiff, in the attachment. A case which may often happen will illustrate the importance of this provision in the law.

p. 701

The defendant in the attachment is tenant of the furnished house of A, the furniture is seized by the constable on an attachment against the tenant to satisfy a claim of $400; the constable' not knowing how the furniture will sell, and quite ignorant of its value, seizes the whole, which proves to be worth $5000. A stranger claims the furniture, gives a bond, approved in the sum of $800, and takes the property. The real owner learning that his property has been thus taken, goes to the constable to replevy it, and finds in its stead a. bond of $800, and that the furniture has gone no one knows whither. But if the construction for which the plaintiff contends be the true one, the constable could not refuse making the delivery to such claimant, although he had, meanwhile, learned that the property attached was worth ten times the penalty of the bond (§ 31 and 32). Taking the construction of the statute, which we are disposed to give it, this count of the complaint, divested of all verbiage and circumlocution, may be fairly stated thus:

The plaintiff complains that the defendant Thompson, being a constable, seized by virtue of an attachment, (against Waltje Kamena,) property of the plaintiff of the value of $2800; the plaintiff claimed the same and tendered to the said constable a bond duly executed and approved in the sum of $1000, according to the statute, which requires that said bond should be in the sum of $5600; that said constable refused to deliver the property on such tender of the approved bond, and that the defendant Wanner advised and instigated the constable to said acts; wherefore, the plaintiff demands judgment against the said defendants for the sum of $2800, the value of the property, and $500 damages, besides interest and costs.

We think such a complaint does not state facts sufficient to make the constable liable; and it follows that Wanner could not be liable for advising the constable to act according to law.

The demurrer must be sustained, and the order of the Special Term reversed with costs.