Majority
p. 400CHARLES L. MILES, Plaintiff and Respondent, v. EDWARD E. BROWN and Others, Defendants and Appellants.
Headnote
I. ATTACHMENT AGAINST PROPERTY.1. Indemnity.—Bond of to sheriff in junior attachment.— Liability of obligors on.
1. They are liable in trespass de bonis asportites, for the whole value of the goods taken by sheriff, although there was a senior-attachment in the hands of the sheriff at the time provided the sheriff first takes or claims that physical control of the property which is necessary to levy, after the giving of the bond, and so-takes it under the junior as well as the senior attachment.
This, although the goods were sold under the execution issued on the judgment in the action in which the senior attachment was issued, and nearly the whole of the proceeds-applied to that judgment, the balance only being applied on the execution issued, after the sale, on the judgment in-the action in which the junior attachment was issued.
2. Levy of attachment.—What not sufficient to constitute.
1. The service of a copy of the warrant on the person in charge of the goods, and informing him of the character of the papers, without any further steps being taken, does not constitute a levy.
8. Removal of goods.—Several writs.
1. Question as to under which the removal took place.
1. Where the deputy sheriff testifies that he served a warrant of attachment by leaving a copy of the warrant with a person in, charge of the store in which the goods were, and informing: such person of the character of the papers, and afterwards served in the same manner a warrant of attachment subsequently-issued in another action, but took no further steps until after the plaintiff in the -second action had given a bond of indemnity, when he removed the goods under both attachments and afterwards testified that the removal was under the first attachment only,
HELD,
that the finding of a referee that the removal was under both, attachments should be sustained.
p. 401Before Monell, Oh. J., Sedgwick and Speir, JJ. Decided December 9, 1874.
H. EVIDENCE.
1. As to delivery of an instrument.
When an offer is made as follows : “ Plaintiff’s counsel offers in evidence the indemnity bond signed and executed by all defendants,” and the same was received without objection,
It can not be objected on appeal that there was no proof of delivery.
a. The offer is of a bond in fact, and it could not be such without having been delivered. ,
Appeal from judgment for plaintiff on report of referee.
The complaint charged the defendants with trespass, in taking and converting personal property belonging to the plaintiff.
The property in question was taken by the sheriff, under an attachment. The conclusion of the referee— that it belonged to the plaintiff—is not disputed on this appeal. It was testified that the property in August, 1869, the date not being specified, was removed from the store of the plaintiff. The sheriff’s officer gave the testimony which affects the main question on this appeal. He testified that a copy of an attachment issued in an action of Lowell v. F. H. Bufford, against the defendant’s (Bufford’s) property was served on a Mr. Schick, at the third or fourth door of the Sixth-avenue, above Fourteenth-street, on the east side of the avenue ; this was served on July 1, 1869. “I then went to No. 1199 Broadway, and served a copy of the attachment on a lady in that store. This was also served on July I, 1869. On July 3, 1869, I served the attachment in the case, E. E. Brown,” the present defendant Brown against F. H. Bufford, ‘‘on the same parties, and same places” as the attachment in Lowell v. Bufford. The places named in this testimony were occu
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pied by the plaintiff, who had there the goods involved. in this action. The witness further testified : “I left a written copy of the attachment in each case. Part of the goods in the Sixth-avenue store, and all the goods in the Broadway store, were removed by the sheriff under these attachments some time after the service and after a bond of indemnity was given to the sheriff. They were removed by virtue of the attachment of Lowell v. Bufford.”
The only bond of indemnity that appeared in the case was one given by the present defendant, Brown, as principal, with the other two present defendants as sureties, to the sheriff.
That bond was made a,nd delivered August 14,1869. It recited the pendency of the action of Brown v. Bufford; that therein an attachmenthad been issued against the property of Bufford and delivered to the sheriff ; that •certain personal property, that appeared to belong to Bufford, was claimed by some other party, and was conditioned to be void “if theabove bounden obligees,” as it is printed in the case—but obligors was intended— “shall well and truly save, keep, and bear harmless, .and indemnify the said James O’Brien, and all and every person and persons, aiding and assisting him in the premises, of and from all harm, let, trouble, damage, &c., that shall or may at anytime arise,. &c., as well for the levying and making sale, under and by virtue of such attachment, of all or any personal property which he or they shall or may judge to belong to ' the said debtor ; or under and by virtue of any execution which may be issued in the said action and levied upon the attached property, as well as in entering any •shop, &c., for the taking of any such personal property,” ■otherwise to be in full force. It appeared, in a general way, that the property had been sold after its removal ■by the sheriff. The answer alleged that the defendant, .Brown, had received from the sheriff under an execution
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issued in Brown v. Bufford, of the proceeds of a sale of Bufford’s property, made under an execution issued in Lowell v. Bufford, the sum of one hundred and forty-two dollars only. This averment was supported by the evidence, which also showed that the balance of the proceeds had been applied on executions prior to that of Brown v. Bufford.
Edwin M. Felt, attorney, and of counsel for appellant,
urged;—I. There is no evidence in the case to show that the sheriff levied on the property of plaintiff, in said action of Brown v. Bufford, or sold the same under such levy; but, on the contrary, the evidence shows that the levy and sale made by said sheriff were so made under and in pursuance of warrants of attachment in other actions against the same defendant, prior in point of time to the attachment issued in the suit of Brown v. Bufford. On defendant’s part, evidence was given which did show that the property in controversy in this action was taken under an attachment issued in the suit of Lowell v. Bufford, to the sheriff July 1, 1889 ; whereas the attachment in the suit of Brown v. Bufford was not issued until July 3, 1869.
II. The referee erred in finding as matter of fact that the defendants, Beay and Felt, authorized, directed and indemnified the sheriff unlawfully to take away plaintiff’s property. (1) There was no proof of the execution of the bond by said sureties. Nothing to show that it was an original undertaking by defendants. (2) There was no proof that it was ever delivered to the sheriff, and until it was so delivered it was not available to any one for any purpose. The fact that the counsel for defendants on the trial made no objection to its admission has no force if made. There was no admission that it was the defendants’ bond, and defendants having duly excepted to the findings of the referee, can avail themselves of it on this appeal. The court of appeals hav
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ing held it to be error for the referee to make a finding in insufficient evidence, although no objection was taken at the'trial. It must be conceded that whatever liability the defendants Reay and Pelt incurred in this action, it was simply by their execution of this undertaking as sureties, and as that is their contract we must-look to it to find out what obligation or liability they incurred. It was a personal protection to the sheriff in case he should, under said attachment, suffer loss by taking the property of other parties in executing the-attachment against Bufford’s property. It is not shown that the 1 sheriff has suffered any such loss or damage, that any suit has been commenced against him, or that he has incurred any of the various troubles and obligations against which he was to be indemnified.
Justin Palmer, attorney, and of counsel for respondent,
urged I. The report of the referee on his finding of fact cannot be questioned upon the evidence. There being no conflict of evidence as to the wrongful taking by the sheriff, the testimony shows that defendants took the plaintiff’s goods in the manner alleged in the complaint, and converted the proceeds thereof to-their own use. The execution of the bond was conceded upon the trial, and it was put in evidence on the trial without objection. It is too late to raise an objection, on appeal not taken on the trial when the objection, if tenable, could have been obviated by proof on the part of the plaintiff (Lewis v. Russell, 43 N. Y. 251 ; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100 ).
II. It is a general rule that the verdict of a jury is conclusive upon the question of fact submitted to them if there is any evidence to support it (Miller v. Lockwood, 33 N. Y. 393 ; Ward v. Perrin, 54 Barb. 89 ).
III. It is also an intendment of law that a verdict, settles in favor of the prevailing party every ques
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tion of fact litigated upon the trial (Wolf v. Goodhue Fire Ins. Co., 43 Barb. 400 ; Van Pelt v. Otter, 2 Sweeny, 202 ). The same authorities apply to a referee’s report.
When the defendants delivered the bond of indemnity to the sheriff, they encouraged and impliedly requested him to levy and sell the plaintiff’s property under the attachment in Brown Bufford, which had been issued, or under the execution in that action, which might thereafter be issued, and, as a necessary implication, they also requested or encouraged him to take such steps as are usually taken towards á levy or sale.
The appellants argue that it appears by the evidence that the levy of the attachment in Brown v. Bufford, was made July 3, 1869, before the bond was given; that the removal was made of the goods from the store, not under the attachment in Brown v. Bufford, but in Lovell v. Bufford; that it does not appear that any sale of the plaintiff’s goods was made under the execution in Brown v. Bufford, and that therefore the sheriff committed no trespass by the influence of the bond of indemnity.
Leaving unconsidered the defendant’s liability, if the proof showed that the sheriff, under the bond, took no step towards levying under the attachment, or for the purpose of subjecting the property to the execution, I am of opinion that there were sufficient facts in evidence to support the conclusion of the referee, that the levy of the attachment in Brown v. Bufford, was made upon the plaintiff’s property after the bond was given.
The witness says that the attachment was served July 3, 1869. A referee or jury might be sustained in construing this to mean actual levy, in certain cases. In this case, however, as the testimony showed that the only thing done, was handing a copy of the attachment
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to the person in charge of plaintiff’s property, the-referee could properly find that no actual levy was made on July 3, 1869. The same is true of the attachment in Lowell «. Brown, served July 1, 1869. There is no-evidence of the sheriff taking or claiming that physical control of the property which is necessary to a levy, until he removed the goods after the bond of indemnity' had been delivered. Other testimony shows that this removal was in August, 1869, and the bond was given August 14,1869. These facts sustain an inference that the sheriff refrained from a levy until the bond was-given, that then he removed the goods, and that having the two attachments, towards which he held the definite duty to levy them if possible, he levied in a legal sense-both at or immediately upon the removal. It is true that the witness, immediately after he had given this-testimony, said that the goods were removed under the attachment in the action by Lowell. The referee was-bound to give due weight to this, but he was equally bound to- give weight to the evidence that the removal was under both attachments, and to decide which statement was entitled to his credence, in view of the corroborations made by the other facts of the case. On this point the referee’s report should be sustained.
The appellant’s counsel claimed the judgment should be reversed, on the ground that there was no proof that the bond of indemnity was ever delivered to the sheriff.. All the printed case contains on this subject is a statement in these words: “Plaintiff’s counsel offers in evidence the indemnity bond signed and executed by all the defendants.” It is argued that this is no proof' of delivery. I take this to be a statement of a fact that occurred on the trial, viz., that the plaintiff offered in evidence what was in deed and not in appearance the defendant’s bond. It could not be a bond without having been delivered. This objection should be disregarded.
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I am of opinion that the judgment should be affirmed,, with costs.
Monell, Ch. J., and Speir, J., concurred.
Cases cited
- Buffalo v. Brainard 9 N. Y. 100 p. 404
- Ward v. Perrin 54 Barb. 89 p. 404
- Wolf v. Goodhue Fire Insurance 43 Barb. 400 p. 405