
    CUDAHY v. RHINEHART.
    
      N. Y. Court of Appeals;
    
    
      May, 1892.
    [Rev’g 60 Hun, 414.]
    1. Appeal to the court of appeals ; how determined.} Upon appeal to the court of appeals from a judgment of the general term reversing a judgment entered upon the decision of the court upon a trial without a jury, if the order of reversal is general and does not state that the reversal was upon the facts, the court of appeals must presume it to have been upon a question of law, although the opinion of the general term shows it to have been upon the facts. If, therefore, no exception has been taken to any erroneous ruling of the trial court, and its findings justify the judgment, such judgment of reversal must be reversed.
    
    
      2. Where judgment goes for plaintiff but for less than his claim, and both parties appeal, a reversal at general term, on defendant's appeal, although in form a mere reversal, is in legal effect an affirmance as against plaintiff's claim to recover anything more than the amount as awarded by the judgment.
    3. The same.\ Upon a trial of an action by a court without jury, plaintiff obtained a judgment for an amount less than claimed. Both plaintiff and defendant appealed, and the general term reversed the judgment on defendant’s appeal, upon a question of law, and granted a new trial. Upon plaintiff’s appeal to the court of appeals,—held, that the reversal by the general term of the judgment of the trial court allowing plaintiff a partial recovery was to be considered as in effect affirming the judgment of the trial court to the extent that it held that the plaintiff was not entitled to recover a greater amount; that the court of appeals was not precluded from assuming, where there is an affirmance of a judgment, that it was upon the facts, and that, therefore, upon the reversal of the judgment of reversal, plaintiff was only entitled to have the judgment of the trial court restored.
    4. Attachment; indemnity bond against a levy.] Where there are several creditors attaching separately the same property, the title to which is in dispute, and on demand some indemnify the sheriff, and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachment may be prior to that of those who give indemnity.
    App.eal by plaintiffs from a judgment of the General Term of the Supreme Court, Second Department, reversing a judgment of the Special Term and ordering a new trial.
    Patrick and John Cudahy sued Clarke D. Rhinehart, sheriff of Kings County, to recover damages for an alleged false return of an execution in an action brought by the plaintiffs in this action against John H. Bani and Patrick Turner.
    
      The Special Term, on a trial without a jury, held that the plaintiffs were only entitled to recover the proceeds of goods attached after they had given the sheriff a bond of indemnity, and as to the goods attached before they gave the bond, they had by refusing to give it, lost their priority over other attaching creditors who had given indemnity. Plaintiffs obtained judgment for an amount less than the damages claimed in their complaint. Both sides appealed.
    
      The General Term held, among other things, that on an examination of the evidence there was nothing to support the claim that the bond of indemnity given by plaintiffs was intended to indemnify the sheriff against the levy on the property that had been attached, and that there was no evidence to show that the goods attached after plaintiffs gave the bond were the property of the judgment debtor. The judgment for plaintiffs was reversed by the general term on defendants appeal and a new trial ordered. The order of reversal directed “that the judgment entered, etc., be and the same is hereby wholly reversed and a new trial ordered with costs to abide the event.” [Reported in 60 Hun, 414].
    Plaintiffs .appealed to the court of appeals “ from so much of the order or decision of the general term as reverses the judgment for plaintiffs and orders a new trial; and also from so much of such order or decision as decides that plaintiffs are not entitled to a new trial upon plaintiffs appeal or for judgment for the amount claimed in the complaint.”
    
      John J. Macklin (Roe & Macklin, attorneys), for appellants
    
      Charles Putzel (Hobbs & Gifford, attorneys), for respondent.
    
      
       The frequent defect in an order of reversal at general term in not stating whether it was on the facts or the law, may be amended pending the appeal to the court of appeals (2 Abb. New Pr. & F. 1012).
    
   Andrews, J.

The order of the general term is general, and, as it does not state that the reversal was upon the facts, the only question we can consider is whether, upon any question of law presented by any exception, the reversal was justified.

It appears from the opinion that the general term pro^ ceeded upon three grounds: (i) That title to the attached property was not shown to have been in Bani and Turner, the defendants in the attachment; (2) that the sheriff demanded of the plaintiffs a bond of indemnity against the seizure of the property, which was refused and (3) that the bond given by the plaintiffs was only intended to indemnify the defendant against the seizure of certain property not found. The difficulty in the way of maintaining the reversal, or of examining here the questions upon which the reversal proceeded, lies in the circumstances that the facts upon which these questions-depend were not found, nor was any request made to find them, and there is no exception to any ruling upon either of the questions upon which the reversal was founded. The general term could reverse on the facts, in the absence of any exception (Roberts v. Tobias, 120 N. Y. 665 aff’g 9 State Rep. 59). If the order of reversal had stated that the reversal was on the facts, it would then become the duty of the court to ascertain from the record whether there was any evidence to sustain the conclusion of the general term. But, as the record stands, importing conclusively, for the purpose of review here, that the reversal was on questions of law only, it is incumbent on the respondent, in order to sustain the order, to point out some ruling and exception taken on the trial, which was erroneous. No such ruling or exception appears. Upon the findings of the trial court, which do not touch the questions raised by the general term, the judgment awarding damages to the plaintiffs was justified, and we cannot go outside of such findings in search of other facts which, if they had been found, would have required a different result,'especially as none of the facts upon which the general term proceeded can be said to have beenunc'ontroverted. No other course is open to us, therefore, except to reverse the order of reversal.

But"the plaintiffs claim that a larger judgment should have been awarded them than was given by the trial judge, and that this court should correct the error in that respect. But in this contention the plaintiffs encounter the difficulty that the general term had power to reverse or affirm on the facts, and it reversed the order on the defendant’s appeal, and held the plaintiffs ought not to have recovered anything; thereby practically affirming the finding of the' trial judge so far as it excluded a recovery beyond the $550, and reversing his finding as to that sum. There was evidence tending to show that the plaintiffs had refused to indemnify the sheriff for the seizure of the property under their attachment, and that the bond subsequently given by them was given for a specific and different purpose, and that the plaintiffs accompanied its delivery with written directions supplementing the previous understanding that the bond was not to be treated as having any relation to the property previously seized-under the several attachments.

We think it is a sound principle that where there are several attaching creditors of the same property, the title to which is in dispute, and on demand some give indemnity to the sheriff, and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachment may be prior to that of those who give indemnity. The sheriff is bound to act with openness and good faith, and must fully apprise the parties of the facts of the situation ; and, where this is-done, and any creditor refuses to give indemnity, it would be very inequitable to permit him to stand by and leave subsequent attaching creditors to take the responsibility, and fight the battle, and, in case they are successful, let him take the fruits of the victory. The principle stated was adopted by the court below, and is supported by authority (Smith v. Osgood, 46 N. H. 178; see Drake Attachm. § 189). The general term had power to affirm on the facts the judgments denying the plaintiff’s claim for damages beyond the sum recovered, and this is substantially the effect of the order of reversal. This is an answer to the claim now made that the court should in disposing of the appeal go beyond a simple reversal of the order of the general term. The statute does not preclude the court from presuming that an affirmance by the general term was upon the facts. The presumption that the court below proceeded on questions of law applies to appeals from reversals only (Code Civ. Pro. § 1338); and here, as we have said, the order of the general term, though a reversal in form, was an affirmance of the trial court upon the claim to recover a sum beyond the amount of the original judgment. The result is that the plaintiffs are only entitled to have the original judgment restored.

All the judges concurred.

Order reversed, and judgment of the special term affirmed, with costs.  