
    Leander W. Kaufman, as Ex’r, etc., App’lt, v. Francis A. Schoeffel, as Sheriff, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1887.)
    
    1. Execution — Title to personal pbofebtt — Evidence warranting CONCLUSION AS TO.
    In an action brought by this plaintiff as the executor of his wife, to recover damages for a conversion of certain property of his testator, it was shown that this defendant, as sheriff, holding an execution against the property of this plaintiff, levied upon articles in a store, of which this plaintiff was then in possesion, and of which he had charge. It was further shown that this plaintiff had for several years next preceding the time of the levy, and both before and after the death of his wife managed the business of the store. Held, that the facts bearing on the possession of the goods unless controverted or explained, warranted a verdict by the jury that the plaintiff was the owner of the property in his own right at the time of the levy.
    3. Evidence—Competency op statements made by a witness contradictory OP HIS TESTIMONY.
    
      Held, that statements made hy the plaintiff before the trial, which were-contradictory of evidence given by him, wrere competent as evidence.
    3. Same—Conflict of—Submission of question to jury.
    
      Held, that the evidence being conflicting as to the ownership of the goods, that issue was properly submitted to the jury.
    4. Personal property—Husband and wife may own in common.
    Husband and wife may own personal property in common.
    5. Execution—Levy upon interest of tenant in common — Title op purchaser.
    A sheriff holding an execution against the property of a judgment-debtor may levy and sell any interest which he may have in goods, and for the purpose of making his levy effectual, may take possession of the whole property, and upon the sale deliver it to the purchaser, who takes it, subject to the existing rights of others.
    6. Same—Trespass by sheriff—Evidence of.
    Where a sheriff, holding such an execution, sells property owned in common as the sole property of the debtor, he is a trespasser, but his intention to treat it so must be manifested affirmatively, and by some other act than the mere seizure and exposing for sale the entire.property.
    7. Agreement—Evidence warranting conclusion of the existence of.
    Where at the request of a sheriff holding an execution against the property of a judgment debtor, he while in possession of goods owned by him in common with his wife, pointed out the quantity sufficient to satis, y the execution: Held, that the jury were authorized to infer that the transaction amounted to an agreement between all the parties that such portion of the goods shouldbe treated as the sole property of the debtor.
    8. Same—Power to make.
    
      Held, that it was competent for the debtor, acting as the agent of his wife, to make such partition.
    9. Letters testamentary—When they relate back and legalize acts of executor—Estoppel.
    
      Held, that letters testamentary, subsequently taken out by him upon the state of liis wife, related back to the time of her death, and legalized his ntermediate acts in respect to the estate, and estopped him from denying their validity.
    10. Evidence—Statements by witness contradictory of testimony GIVEN BY HIM'—COMPETENCY OF.
    A return made by the plaintiff to the collector of revenue was signed by him, and contained a statement that the “ undersigned” had been duly sworn. Held, that as against the plaintiff it was evidence of the fact, and that whether sworn to or not, it was competent as evidence contradicting testimony given by the plaintiff on the trial.
    Appeal from a judgment entered on a verdict rendered at the Monroe circuit, and from an order denying a motion for a new trial on the minutes.
    
      George D. Forsyth, for app’lt; Henry G. Danforth, for resp’t.
   Smith, P. J.

The plaintiff alleged in his complaint that, he is the executor of the last will of Mary I. Kaufman, who-died on the 30th of April, 1883, and that the defendant, on or about the 28th of September, 1883, wrongfully converted, to his own use certain liquors and barrels, the property of said deceased. The answer alleged, in substance, that the defendant was the sheriff of the county of Monroe, and as such he levied on the said property by virtue of an execucution issued upon a .judgment against the said Leander W. Kaufman, which was the conversion alleged in the complaint, and that at the time of the levy, the goods levied on were the property of said Leander, or that he had an interest therein liable to levy and sale under execution.

It appeared that at the time of the levy the articles, levied on were in a store at Nos. 170 and T72 West Main street, Rochester, where the wholesale liquor business was carried on, and were part of the stock then on hand in said store. It also appeared from undisputed evidence that at the time of the levy the plaintiff Kaufman had charge of said store, managed the business carried on there, and had the actual possession of the goods therein, and that such had been the case for several years next preceding the time of the levy, both before and after the death of the said Mary I. Kaufman, who was his wife. Those facts constituted prima facie evidence of title in the plaintiff, and unless controverted or explained by competent evidence to the satisfaction of the jury they warranted a verdict that the plaintiff was the owner of the property in his own right at the time of the levy.

The plaintiff, by way of explaining his possession and apparent control of the property, testified, in substance, that the property belonged to his wife, and that the business was carried on by her during her lifetime; that he had no individual interest in it; that although the business was carried on in the name of Kaufman & Co., his wife was the only member of the firm, and that, in the transaction of the business, he was. employed by her and acted as her agent at a fixed salary, payable monthly, and had authority to sign her name.

His testimony was contradicted in several particulars. It appeared in evidence that, on his examination in certain supplementary proceedings against him, he testified that he was a member of the firm of Kaufman & Co.; that the other member of the firm was Mary I. Kaufman, and that he had no fixed salary. It also appeared that in April, 1882,. in pursuance of the United States Statutes relating to internal revenue, requiring persons intending to engage in the business of rectifying liquors to give notice thereof to the collector of the district, and, in the case of a firm, to state in the notice the name of each member of the firm;, the plaintiff delivered to the collector a notice in writing, signed by him in the name of “Kaufman & Co.,” which stated that Leander W. and Mary I. Kaufman intended to carry on said business under the name of Kaufman & Co., and gave the name of Leander W. Kaufman as that of a person interested, or to be interested, in the business. He also filed with the collector a return, as required by the statute, signed by him. “Leander W. Kaufman, of the firm of Kaufman & Co.,” stating, among other things, that said firm consisted of Leander W. Kaufman and Mary I. Kaufman. Mrs. Kaufman died on the 30th of April, 1883. On the first day of May in that year the plaintiff filed with the collector a similar notice and return, stating that he intended to carry on the business in his own name, and that he was the person interested in it. In July following he executed in his own name a chattel mortgage upon the stock in the store, including the goods in question, to secure the payment of the sum of $8,500, for goods shipped to him after his wife’s ■death. The plaintiff did not take out letters testamentary as executor of his wife’s will till after the defendant levied on the goods, and this suit was commenced the day after the letters were issued!

The written declarations of the plaintiff above referred to, were properly received in evidence to contradict his testimony given, at the trial.

The contention of the plaintiff’s counsel that they did not tend to contradict him, can hardly be maintained. The chattel mortgage was more than a declaration that he had an interest in the goods; it was an act by which he assumed, not as executor, but in his own right, to sell the goods and pass the complete, legal title. Although the notices and returns stated that the parties intended to engage in business, etc., not that they had done so, the papers were filed as a prerequisite, under the statute, to engage in such business, without which the business would have been illegal, and under which the business was in fact licensed and carried ■on. Besides, the papers so filed, stated, as then existing facts, the partnership and the plaintiff’s interest.

The only attempt made to corroborate the plaintiff, was a witness named Oliver, who testified on his direct examination on being shown an accounting of the goods in question, that the goods were sold to Mrs. Kaufman, and he subsequently spoke of them as sold to Kaufman & Co., and on his cross-examination, said that he did not refer to any particular goods, but that he testified to the class of goods ■specified in the inventory. The plaintiff gave some testimony for the purpose of explaining his action' respecting the notices and returns to the collector and the chattel mortgage, the substance of which was that he then acted for his wife, or for the benefit of her estate.

The deputy sheriff who made the levy testified that in the first place he levied on the goods in the store; that Kaufman then said the value of the goods in the store far exceeded the amount of the execution, and that the witness replied that he only wanted to take enough goods to satisfy the execution and costs, and told Kaufman that if he would point out goods to a sufficient value to cover that, he would allow him (Kaufman) to go and sell the rest. That Kaufman showed him a quantity of goods stored in the back part of the store, and witness told him he would levy on them, which he did and afterwards sold them. That testimony was not controverted. Kaufman testified that he told the officer the goods belonged to his wife.

The foregoing statement is a summary of the testimony in the case respecting the ownership of the goods. The testimony obviously presented a question for the jury, and if they disbelieved the explanatory testimony, given on the part of the plaintiff, as they well might, it was competent for them to find that Kaufman owned, in his own right, an undivided half of the goods, or even that he was the sole owner of the whole.

There is, therefore, no ground for interfering with the verdict as being against the weight of evidence, and the plaintiff’ s request that the court direct the jury to find a verdict for the plaintiff for the value of the property, to be assessed by them, was properly refused.

The questions above indicated were left to the jury, the trial judge having instructed them that if Kaufman had no personal interest in the goods, they should find for the plaintiff, but that if he had a personal interest in them, or if he and his wife owned the property together the verdict should be for the defendant.

Other questions are presented by the appeal. The appellant’s counsel suggests that for aught that appears, the jury may have put the verdict upon the latter branch of the alternative above stated, and assuming that they did, he contends that the verdict cannot be sustained.

He contends that husband and wife cannot be co-partners, in trade or businesss. We so held, in this case, on a former appeal (37 Hun, 140). That was the only question then discussed or decided. The question whether under our statutes, husband and wife may own personal property in common, was not considered. At the trial now under review, the learned court charged in favor of the latter proposition. We see no reason to question the correctness of the charge in that respect. Chapter 472 of the Laws of 1880 seems to recognize the right of the husband and wife to hold lands as tenants in common, joint tenants or tenants by entirety. If they may hold land in common, why not personalty? Under the statutes, the right of a married woman, to take and hold personal property, is as broad and absolute as her right to take and hold real estate.

It is also contended by the appellant’s counsel, that conceding the plaintiff might lawfully be, and was in fact, the owner of an undivided part of the goods, the attempted justification fails, for the reason that the sheriff levied upon and sold the entire property, and not merely the plaintiff’s interest.

The sheriff had the right to levy upon and sell the interest of Kaufman in the goods, and for the purpose of making his levy effectual, to take possession of the whole property, and upon a sale, to deliver it to the purchaser, who would take it subject to the rights of the plaintiff as executor of his wife’s estate. The cases of Wheeler v. McFarland (10 Wend., 318); Smith v. Acker (23 id., 653); Waddell v. Cook (2 Hill, 47); and Atkins v. Saxton (77 N. Y., 195), cited by the appellant’s counsel, are authorities for the proposition above stated. They also assert, that when a sheriff exceeds that limit, and instead of levying on the debtor’s interest, levys upon and seizes the property, as the sole property of the debtor, he is a trespasser. It is obvious, however, that in order to hold the sheriff liable as a trespasser, under the latter rule, it must appear affirmatively that he manifested an intention to treat the thing levied on. as the sole property 6f the debtor, by some act or claim, other than the bare levying on the entire property and exposing it for sale. And to-that effect, are the reported cases. In Wheeler v. McFarland, the sheriff advertised the whole property. As Chief Justice Savage said, in deciding the case, “he did not propose to sell subject to the plaintiff’s claim, but in defiance of it.”

In Waddell v. Cook, the sheriff sold the whole interest. In a note to that case, the reporter says the authorities-give no sanction to the idea that the sheriff would be protected, provided he should expressly sell the whole interest. In Atkins v. Saxton, the levy was upon the whole property and was admitted to be in hostility to the rights’ of the plaintiff and every other person.

It is difficult to find evidence in this case that the sheriff exceeded the just limits of his authority. What' transpired at the time of the levy, does not distinctly appear, except-as above stated. The deputy sheriff was asked by the plaintiff’s counsel, on cross-examinntion: “Did you not make this levy upon the interest that Leander W. Kaufman had in that property as copartner of Mary I. Kaufman?” He answered that he did not. That was merely a denial that he levied on a copartnership interest. There was evidence that when the officer took the goods away he was told by Kaufman that he, Kaufman, had no interest in them, and that they belonged to Mary I. Kaufman, and that if he sold them he did so at his peril; that it does not appear that the goods were removed at the time of the levy. Besides this, there is only the statement that some of the packages of goods were sold. It can hardly be said that there was evidence that the sheriff levied on or sold anything more than the interest of Kaufman.

The justification, as set up in the answer, does not rest exclusively upon the assertion that Kaufman was the sole owner. The averment in the answer is in the alternative that Kaufman owned the property or had a leviable interest therein. The distinction between a claim in that form and an unqualified claim of absolute property in the debtor, set up in the answer, was commented on and regarded as very material by Mr. Senator Verplanck, in Smith v. Acker (supra, 668, 669).

There is another view to be taken of this question. It will be remembered that the officer who made the levy testified that upon his telling Kaufman that if he would point out goods of sufficient value to satisfy the execution, he would allow Kaufman to sell the rest, Kaufman pointed out the goods that were levied on. The remainder of the goods were left in Kaufman’s possession. We are inclined to think that the jury were authorized to find from the evidence that the transaction amounted to an agreement between Kaufman, representing the estate of his wife, and the judgment creditors of Kaufman, for whom the sheriff was acting, that the portion of the goods levied on should be treated as the sole property of Kaufman, and was, in effect, a partition of the common property. That it was competent for Kaufman, acting for the estate of his wife, to allow such severance, is unquestionable. Tripp v. Riley (15 Barb., 334; Fobes v. Shattuck, 22 id., 568. The waiver of the original levy and the relinquishment by the sheriff of all claim upon the large part of the stock not finally levied on, constituted a good consideration for the agreement of Kaufman, acting in behalf of the estate of his wife. The latters testamentary, subsequently taken out by Kaufman, related back to the time of the death of his testatrix, legalized his intermediate acts in respect to the estate, and estopped him from denying their validity. Vroom v. Van Horne, 10 Paige, 549.

But it is a sufficient answer to the contention now under consideration, that .there is no evidence before us that such contention was made at the trial. If it had been, for aught that appears, the defendant might have met it, by showing more fully what occurred at the time of the levy and the sale. It cannot be urged, for the first time, on appeal.

One other question remains. It is apparent from the language of the judge in his charge, when speaking of the-return made by the plaintiff to the collector, in April, 1882, that the judge treated the return as having been sworn to, and the jury probably so understood the charge. The-return was evidently made upon a printed blank, at the foot of which was a blank jurat, but the jurat was not filled up or signed. The appellant’s counsel contends that this was an error on the part of the court by which the-plaintiff was prejudiced. To this, there are several answers:

First. Although the jurat was not signed, the return was signed by the plaintiff and it contained a statement that the “undersigned,” that is, the plaintiff had been duly sworn. That statement was not controverted, and as-against the plaintiff, it was evidence of the fact. The paper on its face, was equivalent to a statement by the plaintiff that he had verified it by his oath, but that the officer who administered the oath had omitted to sign the jurat.

Second. If there was error in this respect, it was waived. For aught that appears, the plaintiff’s counsel had full opportunity to inspect the paper at the trial. The record shows that he understood that the jurat was not signed, for he stated to the judge that the paper was not sworn to after the jury retired, but before they rendered the verdict. On being replied to by the judge that the paper was sworn to, he took no steps, and made no request to have the paper again looked at and the error corrected.

Third. The jury had the paper before them in the jury room, and an opportunity to read it deliberately, and see its contents.

Fourth. Although no exception was taken to the remarks of the judge on this subject, we have examined the matter with a view of ascertaining whether the plaintiff was prejudiced thereby. Whether sworn to or not, the paper was a written statement deliberately made by the-plaintiff, and was properly received to contradict him as a witness. It cannot be said that a verification would have added to its force, for that purpose, except upon the assumption that the' statement of the witness was not evidence of the truth, unless made under oath. An assumption, which of itself, would be a strong impeachment of his veracity.

The judgment and order should be affirmed.

Haight and Bradley, JJ., concur; Barker, J., not sitting.  