
    Thomas D. Rambaut, as Assignee for the Benefit of Creditors of Wilson Brothers Woodenware and Toy Company, Appellant, v. Irving National Bank, Respondent.
    
      Conversion—levy, under an attachment against an assignor, on property held by the assignee — expenses incurred in vacating the attachment a/re not recoverable by the assignee — damages to the assignee from delay in selling the property—new trial not ordered to encéle a plaintiff appellant to recover nominal dcmages.
    
    . Where a sheriff levies, under an attachment against a debtor who has made an assignment for the benefit of creditors, upon property, the title to which is in the assignee, but does not remove the property levied upon from the place in which it is, nor interfere with it otherwise than by taking nominal possession thereof, the assignee, in an action for the conversion thereof brought against the attachment creditor, is entitled to recover only nominal damages.
    The assignee is "not entitled to recover damages, resulting from his being prevented from selling the property levied upon during the time the sheriff had possession of it, where it appears that ¡during that time the assignee had no power to sell .the property owing to his failure to file his hond.
    Counsel fees and expenses incurred by the assignee, upon a motion made by his assignor to vacate the attachment, cannot be recovered in such an action.
    The fact that the assignee retained the property to await the result of ati appeal from the order vacating the attachmenjt does not entitle him to recover the amount of a depreciation ip price incident to such delay, as he was not bound to retain the property during the pendency of the appeal.
    Unless some substantial right beyond damages is involved, the court will not, upon appeal, reverse a judgment simply for the-purpose of enabling a plaintiff appellant to obtain nominal damages, i
    Appeal by the plaintiff, Thomas D. Rambaut, as assignee for the benefit of creditors of Wilson Brothers Woodenware and Toy Company, .from-a judgment.of the Supreme Court in favor of the defendant, entered in the office of the clefk of the county of New York on the 17th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term
    
      Edward H. Wilson, for the appellant.
    
      Charles E. Rushmore, for the respondent.
   Rumsey, J.: 5

, The action is brought to recover damages for conversion. Upon the trial the learned justice dismissed the complaint, ahd- from the judgment thereupon entered this appeal is taken.

The facts are that the defendant Irving National Bank, being a creditor of the Wilson Brothers Woodenware and Toy Company, brought an action to recover the amount of .its debt and sued out a warrant of attachment against its debtor, which was levied by the sheriff .on the 29th of June, 1898. Almost immediately after the levy had been, made, the plaintiff here served a notice upon the sheriff .that he, as assignee for the benefit of creditors of the corporation, was the owner of the attached property. Thereupon the defendant in this action procured ah undertaking to be given to the sheriff to indemnify him against damages arising out of the levy on the attachment. , The defendant inj that action subsequently moved to vacate the attachment upon affidavits, and on the 12th day of July, 1898, an'order was made vacating the attachment. The sheriff thereupon abandoned his levy and the plaintiff took possession of" the goods. :

Upon these facts, which are not disputed, it is undoubtedly true that there was a technical conversion of the property by the defendant, and that the plaintiff would have been entitled to recover nominal damages at least, for the conversion. (Dyett v. Hyman, 129 N. Y. 351.) No other damages were proved, because it is conceded that, although the sheriff took nominal possession of the property, he did not in fact remove it from the place where it was, nor in any way interfere with it except to take such nominal possession.. But the plaintiff here claimed that he was entitled to damages for the amount of counsel fee and expenses to which he was put in the motion to vacate the attachment. This the learned justice below refused to permit him to prove for the reason that such counsel fee and expenses were not proper items of damages in such an action.

It appears from the record that the motion to vacate the attachment was made by the defendant in that action. If that were so, of course, there could be no claim that the assignee of the defendant, who was not a party to the motion, was entitled to any of the expenses imposed upon the defendant because of the necessity of vacating that attachment. The expenses arising out of the attachment and the damages caused to the defendant in the action because of its issuance are to be recovered by him, if at all, in proceedings upon the bond (Code Civ. Proc. § 640), which the statute requires to be given by the plaintiff to indemnify the sheriff against these things. But the plaintiff here claims that he should have been permitted to prove that in fact he moved to vacate the attachment and paid the expenses of the motion.

If that had been the fact, the case would not be altered. If the property belonged to the plaintiff in this action by the assignment, as he claims it did, his right of action arose upon the levy that was made. It was not necessary for him to move to vacate the attachment to entitle him to recover for the conversion. It may be quite true .that where the property of a person has been converted by another, the owner is entitled to recover in his action for the conversion all expenses to which he was necessarily put, by reason of the conversion, in his efforts to recover the property before suit. But the rule in that case must be limited to such expenses as were necessarily incurred. If the owner: of the property sees fit to do something which it is not necessary for him to do by way of establishing his right, the expense of so doing is certainly not the result of the conversion of which he complains, and the person who has converted the property cannot be charged with it.

The plaintiff offered to prove as another item of damages that he ' was prevented from selling the property during the time the sheriff had possession of it under the levy. This the learned justice refused to permit him to show, and in this, ruling he was clearly correct. The sheriff did not interfere with the property while it was in, his jiossession in such a way as to damage it in the slightest degree. The plaintiff, being the assignee for the benefit of creditors, had no authority to sell or dispose of the property, or in any way convert it to the purpose of the trust, until he had filed his bond. (Laws of 1877, chap. 466, § 5.) This was done on the 23d of July, 1898. Then, and not until then, the plaintiff had the right to sell or dispose of this property, and no act of the sheriff done before that time could injure him in that respect. For that reason the ruling of the court refusing to permit him to show that he was not able to sell any of the property during the; time the sheriff actually had possession of it was ■ correct.

He further claims that he was damaged because he kept this property during the pendency of the appeal to await its result, and that certain of it thus held did not bring, when sold, the prices that it would have brought if it had been sold during the summer; This the learned justice also refused to permit him to show, and in this ruling also he was correct. After the attachment had been vacated, the plaintiff had the full and entire control of this property. ’There was no reason, legal or otherwise, why he should not have sold it if lie' had seen fit to do so ; and if he preferred to retain possession of it until the appeal had been determined, he cannot charge the effect of that unnecessary act of his upon the sheriff or upon anybody else.

The result of the whole matter is, that while undoubtedly the plaintiff established a technical conversion which entitled him to,,, recovér nominal damages, yet, if a verdict had been ordered in, his.. favor, no greater amount of damages could have been recovered by him. Unless some substantial right beyond damages is involved the -court will not reverse a judgment against the plaintiff simply for the purpose of enabling him to obtain nominal damages, when it is -quite clear from the case presented that he would be entitled to no more. (Funk v. Evening Post Pub. Co., 76 Hun, 497; Stephens v. Wider, 32 N. Y. 351.)

For this reason the judgment must be affirmed, with costs to the respondent.

O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  