Farjeon v. Grant

Headnote

Substitution of indemnitors in place of sheriff—-§ 1421 Code contemplates an action for conversion and not for willful and malicious trespass— When allegation of malice and intent deemed surpilusage in compdaint for conversion—Objection to substitution that application shows indemnitors not liable for all the sheriff levied on—Code § 479 as to service of complaint, application of

Appeal by plaintiff from order substituting as defendants the indemnitors of the sheriff, in the place of the sheriff, under § 1421, Code Civil Procedure.

The facts and objections appear from the following opinion of the General Term:

“•The first objection to the order made, is that the action is of a kind not within the intention of § 1421, Code Civ. Pro. It is argued that the Code refers to actions for conversion simplieiter, when the sheriff has taken under process property which he is not justified in taking, but that the present action is for a willful and malicious trespass by the sheriff, made with the intention of breaking up the business of plaintiff. In my opinion, the complaint claims conversion only, and under it damages for conversion only can be recovered. The so called malice and intent to break up the business as alleged in the complaint, do not alter the act of conversion or give greater damages than those that follow a conversion; for the only thing averred to have been actually done by the defendants was taking and converting and retaining goods.

“The complaint charges that ‘the defendants wrongfully and unlawfully and with malice and with intent to injure the plaintiff and destroy her said business, for the profit and advantage of the defendants, they the said defendants unlawfully took and carried away and converted to their own use, and still retain from her, the goods and chattels,’ etc.

“It'is not meant to deny or affirm that there may be a malicious trespass connected with a conversion which will give a right to exemplary damages, or which will’ have, as a proximate result, other damages than are measured by the value of the property taken. Such a case is not described in the complaint. A bare conversion is charged, and its consequences are not enlarged by an allegation of motive and intent.

“ The next objection js, that the application did not show that the indemnitors were liable for all that the sheriff seized under the execution. The affidavit said on this subject that, ‘ under said execution, the defendant sheriff levied on the property, or part thereof, referred to in the complaint.’ It is supposed that this may leave a case of the indemnitors being responsible for part and

the sheriff responsible for the rest. Taking all the affidavits and papers, they show that the indemnitors were responsible for all that the sheriff took, but the extract from the affidavits reserves the question of fact of what the sheriff did actually take.

“ The order as made required the plaintiff to serve upon the indemnitors’ attorney a copy of the complaint. It is supposed that as those attorneys had already appeared for the defendants other than the sheriff, it was not necessary under section 479 of the Code, to make a further service upon the indemnitors becoming defendants. It may be doubted whether section 479 is to be applied to this case. If it be applicable, the appellants have not been injured by a direction that tended to certainty and regularity in the progress of the action.”