
    William B. O’Reilly, Appellant, v. Mitchell L. Erlanger, Sheriff of New York County, Respondent.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Exemptions — Articles used by undertaker in business — Code Civ. Pro., § 1391 — Question for jury.
    Where in an action against a sheriff for seizing, upon execution, personal property in value less than $250 used, in plaintiff’s business as an undertaker and claimed by him to be exempt under section 1391 of the Code of Civil Procedure, of which claim the sheriff was notified before the sale, the evidence tends to support the complaint, it is for the jury to determine the character of the property, and the direction of a verdict for defendant is error.
    
    (MacLean, J., dissented.)
    Appeal by the plaintiff from a judgment rendered in favor of the defendant dismissing the complaint and from an order denying plaintiff’s motion for a new trial, made in the Municipal Court of the city of Yew York, twelfth dis- . triet, borough of Manhattan.
    C. La Rue, for appellant.
    M. C. Milnor, for respondent.
    
      
       See Clark v. Smith, 31 Misc. Rep. 495; Field v. Ingraham, 15 id. 531; Knapp v. O’Neill, 46 Hun, 317; Gilewicz v. Goldberg, 69 App. Div. 439.
    
   Davis, J.

The defendant had seized certain property of the plaintiff under an execution. The plaintiff sought to replevy it in this action on the ground that the property seized was exempt under section 1391 of the Code of Civil Procedure, of which exemption he claimed to have given due notice to the defendant. The property seized consisted of a safe, a table desk and a candelabra, used by the plaintiff in his business as undertaker. Their value was less than $250. After the introduction of evidence as to his being a householder, the nature of his business and the use made by him of these articles in his undertaking business and other evidence tending to support his complaint, the learned court, on motion of the defendant directed a verdict for the defendant.

In granting this motion we think error was committed and that the case should have been submitted to the jury for them to determine, under instructions from the court and from the evidence, the character of the articles claimed to be exempt under section 1391 of the Code.

We, therefore, think that the judgment should be reversed, with costs to the appellant to abide the event.

Scott, J./ concurs.

MacLean, J. (dissenting).

The sheriff rightly had judgment, in my opinion, because of failure to' make out the case of the plaintiff who, among other things, did not prove himself to have been at the time of the levy a householder, a term which, “ as used in the statute has a very well-defined meaning, and imports the master or head of a family who reside together and constitute a household.” Chamberlain v. Harrow, 46 Hun, 48, 51.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  