Heath v. Westervelt — 4 N.Y. Super. Ct. 110

Majority

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Heath and Armstrong v. Westervelt, Sheriff, &c.

Headnote

Voluntary assignees of a defendant in an execution, who become such after a levy, are not strangers within the meaning of the rule which requires an officer justifying against a stranger, to show a judgment as well as an execution.

It is sufficient in an action by such assignees against a sheriff, for the latter to produce his execution, and the former cannot impair his right to retain the goods levied, by attacking the judgment.

July 17;

Sept. 30, 1848.

Replevin.—Upon the trial, it was admitted that on the 17th of August, 1847, Thomas B. Wheeler was the owner and in possession of the property in question, at his store, number 88 Bowery; and that on the 20th of the same month, he executed and delivered to the plaintiffs an assignment of the same, for the benefit of his creditors. On the 2lst day of September, 1847, the plaintiffs demanded the property from the defendant, and he refused to deliver the same. The demand was in writing, addressed to him as sheriff, and mentioned the property as that levied on by him in the store, 88 Bowery, under pretence of an execution in favor of Luther Williams against Wheeler; and called on the sheriff to deliver up the immediate possession of the same to the plaintiffs, whose title as assignees was stated.

A witness for the plaintiff then proved the value of the property. On his cross-examination, he testified that a deputy of the sheriff, had made a levy on the stock in question, and had left a man in charge of it before the assignment was executed. The witness was not present when the levy was made.

The defendant’s counsel introduced a paper from the files of the county clerk’s office, purporting to be the record of a judgment in the supreme court, recovered by confession without suit, in favor of Luther Williams against Wheeler, filed August 17th, 1847.

The plaintiffs objected to the evidence, on the ground that on the face of the paper, it appeared to have been altered in the date of the signature thereof, from August 21st to August 17th, and that such alteration should be first explained, and proof be

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made of the time when the paper was actually signed and became a record. The objection was overruled, and the record was read in evidence.

The signature of the judgment, had first been dated August 21st, and the figures “ 21st” had been stricken out, and “ 17th” inserted, and a note was appended, to the effect that the date “ 21st” was altered to “ 17th,” by an order of the court dated September 16th, 1847. The record appeared to have been filed August 17th, 1847.

The defendant next read in evidence, under an objection of the plaintiffs, an execution on that judgment, directed to the sheriff of New York, which was indorsed as having been received by the defendant on the 18th day of August, 1847. It was admitted that on the same day, the execution was levied on the property in question.

The defendant then read in evidence, under objections to its competency, a certified copy of a rule made by the supreme, court, September 16th, 1847, upon a motion made on behalf of Wheeler to set aside Williams’ judgment and execution, by which rule the motion was denied, and the plaintiff was allowed to amend the judgment record, by having it signed by the clerk as of the 17th of August, 1847.

The plaintiffs then called the deputy clerk as a witness, and offered to prove, that he filed the judgment record, and that when it was filed, it had not been signed by any officer. That immediately after filing it, the witness discovered it had not been signed, that there was no warrant of attorney executed by the defendant, with the same, and witness at once notified the attorney of the defects, who promised to supply them next morning. The record was not signed till August 21st, and was then signed by another deputy in the clerk’s name ; and no warrant of attorney was ever produced to the officer who signed the record. This testimony was objected to by the defendant’s counsel and excluded by the judge.

The plaintiffs were thereupon non-suited; and they now move to set the nonsuit aside.

E. Sandford, for the plaintiffs.

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N. B. Blunt, for the defendant.

On looking into this case, we find it unnecessary to decide the question, as to the validity of the judgment entered up by Williams against Wheeler, and the admissibility of the testimony offered with a view of impeaching the record. Independent of those questions, we think the ruling at the trial was correct.

On the 20th of August, 1847, the sheriff was in possession of the goods by his levy ; and could have maintained his right to them, as against Wheeler, upon the execution alone, without resorting to proof of the judgment.

The assignment subsequently executed by Wheeler to the plaintiffs, transferred no greater or other right than he himself had. The plaintiffs are voluntary assignees ; not purchasers in good faith for value, without notice. They received the property, just as Wheeler held it, and subject to the rights which the sheriff had acquired ; one of which was to retain it by force of the execution and his levy.

The plaintiffs therefore are not strangers, within the meaning of the rule, which requires an officer justifying against a stranger, to show a judgment as well as an execution. The sheriff is acting strictly on the defensive, against parties who derive their title from the defendant in the process, subsequent to the levy; and who in this sense, are privies of the defendant.

The regularity of the judgment was therefore immaterial, and the points presented on that subject may be laid out of view.

As to the nonsuit, it was discretionary with the judge ; and he adopted the course least prejudicial to the plaintiffs.

Motion to set aside the non-suit denied.