
    William H. Flandrow, Pl’ff, v. Henry B. Hammond, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    Contract—Failure of consideration.
    By an agreement in writing, reciting that defendant had procured a judgment against a hank, in an action in which an attachment had heen levied on a judgment recovered by the hank against a third party, defendant agreed to issue execution, direct sale and hid in said judgment, at plaintiffs risk, for the whole amount of his judgment and transfer to plaintiff all the interest which he should acquire in the hank’s judgment on said sale on payment of the amount of the bid. In an action to recover the consideration paid by plaintiff there was evidence that the levy of the attachment was invalid, but there was no evidence that this was the only attempt to levy or that other proceedings may not have been taken by which a valid levy was acquired. Held, that the evidence was insufficient to show that defendant’s representations upon which the contract was founded were untrue, and that plaintiff was not entitled to recover.
    Motion for a new trial on exceptions ordered heard in the first instance at general term, after dismissal of complaint.
    
      A. Kling, for pl’ff; N. S. Spencer,for def’t.
   Van Brunt, P. J.

In May, 1871, the plaintiff and defendant entered into the following agreement:

“ We, the undersigned, Henry B. Hammond and W. H. Fland" row, do agree as follows : Whereas, said Hammond recovered a judgment against the Marine Bank of Chicago, in the supreme court, on November 2, 1870, for $1,282.62, in which action an attachment was issued and levied by the sheriff of New York county upon a judgment recovered by said Marine Bank of Chicago against Tunis Yan Brunt, on March 1, 1867, for $6,858.-12, which last named judgment said Flandrow is desirous of legally acquiring: Now, the said Hammond,,i'n consideration of $260 to him paid by said Flandrow to cover sheriffs’ fees and other charges, consequent upon the following promises, and further covenants following, doth hereby agree to issue execution forthwith upon the judgment recovered by him against said Marine Bank, and direct the sale by said sheriff thereunder of said judgment levied under said attachment within ten days, or as soon thereafter as said sheriff can legally sell the same; and further, that he. said Hammond, will, at said Flandrow’s risk, bid in said judgment upon said sale for the whole amount of his own judgment, with interest, and will immediately thereafter transfer all the interest which he shall acquire in said judgment under said sheriff’s sale to said Flandrow, on the payment to him by said Flandrow of the further sum of one thousand three hundred and seventy-two 36-100 dollars forthwith. Provided, however, that in case the sheriff shall receive and accept a higher bid at said sale than that of said Hammond, then this agreement shall be void, and said Hammond shall at once repay to said Flandrow said sum of two hundred and sixty dollars; and further provided that, in case said Flandrow shall fail to carry out the provisions of this contract, he shall forfeit to, and said Hammond shall retain, said sum of two hundred and sixty dollars as part of this damages. Witness our hands and seals, this 5th day of May, 1871.
"Signed]' “ Henry B. Hammond, [L. S.]
^Signed] “ W. H. Flandrow, [L. S.]”

Subsequently, upon the application of said Hammond, the court directed the sheriff to sell at public auction, under execution to him issued, the said judgment so levied upon in said warrant of attachment; and on .the 30th of May, 1871, the sheriff sold to said Hammond, for the sum of $1,372.36, the said judgment, and the plaintiff in this action paid to said Hammond said sum of $1,372.36 and $260, making in all $1,632.36. The plaintiff further introduced in evidence the proceedings upon the accounting of the estate of Tunis Van Brunt, the judgment debtor in the action ■of the Marine Bank of Chicago against him, upon which judgment, it was claimed, the attachment in the action of Hammond •against the Marine Bank had been levied. The court dismissed the complaint, which ruling was duly excepted to, and the exception ordered to be heard in the first instance at the general term.

We are of opinion that, under the agreement entered into between the parties to this action which has been heretofore referred to, there was a representation upon the part of the defendant that he had a valid judgment against the Marine Bank of Chicago, and also a valid attachment which had been levied upon the judgment obtained by the Marine Bank of Chicago against Tunis Van Brunt, and that the whole of the agreement rested upon these ■representations; and if it had appeared in the action that no such levy had been made, but that the attempt to levy had been so informal that the defendant Hammond acquired no lien upon said judgment, there was a failure of consideration for the payments made under the agreement, and the plaintiff ought to have been allowed to recover the amount of such payment. But we have ■examined the record in vain to find any evidence showing the invalidity of this levy, or that thgse representations, were untrue. The record, it is true, contained an affidavit made by the sheriff’s •deputy in another court and another proceeding, wherein he does -state the manner of making a levy, and which is not in accordance with the mode pointed out by the decision of the court of appeals, but there is nothing tending to show that this was the only levy attempted to be made, or that other proceedings may not have been taken by which a valid levy was acquired. The plaintiff, to succeed in this action, was required to show that the representations contained in the agreement were untrue, and in respect to the existence of the levy he does not seem to have supported his allegation with proof which necessarily led to the conclusion that no valid levy had ever been made; and it seems, therefore, that there was a deficiency in the establishment of the facts necessary to constitute a valid cause of action. It would seem from a reference to certain cases which have been decided in the court of appeals, involving the validity of this levy, that probably such was the fact; but it has not been proven in the case at bar. The ex•ceptions, therefore, must be overruled, and judgment ordered for the defendant upon the dismissal of the complaint, with costs of this application and in the court below. k

Follett and Parker, JJ., concur.  