
    CHAPMAN against DOUGLAS.
    
      New York Common Pleas;
    
    
      General Term, May, 1874.
    Pleading.—Defect of Parties.—Execution!— Wrongful Levy.—Sale of Safe and Contents.—Liability of Indemnitors.
    Where a defendant, sued for a wrongful levy, answers justifying under process against a corporation to whom he alleges the property levied on belonged, plaintiff may prove in avoidance, that before the levy the property of the corporation had been vested in a receiver.
    A sheriff levied process cn a safe which did not belong to the judgment. debtor, and in which was locked up merchandise belonging to still another person, the present plaintiff. The sheriff removed the safe and contents to an auction room, unpacked the merchandise and deposited it, marked with his name upon it, with the auctioneer, and sold the safe on the execution. .
    ' Held, that the seizure of the safe being wrongful, that of the contents was so, also; but the obligors in the indemnity bond-given to the sheriff were not liable in respect of the contents, without proof that they had knowledge thereof.
    George M. Chapman sued Alexander Douglas, Joseph B. Taylor and Alexander Matthews, in the New York - common pleas, to recover the value of a safe and its contents, taken from the possession of the plaintiff in November, 1866, by the sheriff under an attachment issued in an action brought by the defendant, Douglas, against the New York Silk Manufacturing Company. The attachment was issued on the ground that said company was disposing of or secreting its property with intent to defraud said Douglas.
    
      In December, 1866, judgment was entered against said company in favor of the defendant Douglas, an execution issued thereon, under which the sheriff forcibly took from the plaintiff ’ s possession said safe, and also its contents, being a large quantity of valuable silk owned by the plaintiff.
    The safe was taken from plaintiff’s premisés, on Thirty-third-street, to the factory of R. M. Patrick, 63 Cannon-street, and there opened on January 9, 1867, and the contents taken thence to Walters’ auction store. No offer was ever made to return the silk to the y plaintiff.
    The sheriff informed the defendant, Douglas, that plaintiff claimed the safe, and demanded that Douglas should give an indemnity bond which was thereupon given, executed by all of the defendants, before the sheriff made a levy under the attachment.
    ” On the trial the defendants introduced evidence tending to show that the New York Silk Manufacturing Company owned said safe in January, 1866, and that the alleged purchase by plaintiff, was unauthorized by the company, and void under several statutory provisións.
    The plaintiff put in evidence a decree of the supreme court, dated April 17, 1866, in an action against said company by a judgment creditor, appointing a receiver of all the stock, property, things in action, claims, &c., with all the powers and authority conferred on receivers, as provided in art. 3, tit. 4, ch. 8, part 3, of the Revised Statutes; 2 Rev. Sat., 469, §§ 67, 68.
    William W. Chipman was appointed such receiver, and his appointment was perfected by filing a receiver’s bond, April 34, 3866.
    ' At the close of the testimony the court held that the receiver was the only person who could contest the plaintiff’s title to the safe, and the jury rendered a verdict for the plaintiff for the value of the safe, five - hundred and sixty-eight dollars, and of the silk, three thousand five hundred and sixty-seven dollars and four cents.
    
      Richard C. Elliott, for the appellants.
    
      Erastus New, for the respondent,
    Cited as to the main question: Boyce v. Brockway, 31 N. Y., 490; Herring v. Hoppock, 15 Id., 409 ; Ball v. Loomis, 29 Id., 413; Davis v. Newkirk, 5 Den., 92.
   Daly, Ch. J.

The defendants, to justify the taking of the property, averred that at the time of the levy, it ■ was the property of the New York Silk Manufacturing Company; or that they had an interest in it which was liable to levy and sale under the attachment and execution. Their whole defense rested upon this averment; for if it were not the property of the corporation at the time of the levy, or if they had not in it then any interest which could be attached, or levied upon, the sheriff had no right to take it under an attachment and execution against that company.

Everything set up in the answer to justify the taking, was impliedly denied ; and, it being incumbent upon the defendants to establish the ownership or interest of the company in the property levied upon, it was undoubtedly competent for the plaintiff, upon that issue, to show that before the levy had been made, a receiver of the corporation had been appointed, and that all the right and title which it had in its property and effects, was at the time of the levy vested in him.

The cases of Savage v. Corn E. & F., &c., Co., 4 Bosw. 15, and Brett v. First Universalist Society of Brooklyn, 63 Barb., 610, which the appellants rely upon, have no application to this case.

They merely hold that a defendant cannot avail himself of a defect of parties, or of title in a third person, unless he has set it up in the answer by way of defense, which is a very different case from this.

The appointment of a receiver of the company’s effects having been shown, and the fact being undisputed, it was a complete answer to the defendants’ rights to have the safe levied upon and sold to satisfy the execution which they had against the company.

If, as the defendants insist, the safe was illegally or fraudulently transferred to the plaintiff*, the receiver, who then represented both the corporation and its creditors, could alone maintain an action, or take any proceeding to récover it, he being vested by the law with the sole and full authority to do so (Tallmadge v. Pell, 6 N. Y. [3 Seld.], 328).

The only question, then, that remains is, whether the defendants are answerable for the taking of the contents of the safe. ' •

There would be no doubt of the sheriff’s liability. If he had no right to take the safe, and could not take it, as it was locked, without taking the contents, he would be answerable for the act.

The safe was in the plaintiff’s possession, upon his premises. The plaintiff had tilled it with silk, and had) locked it. He was under no obligation to unlock it, and take out the silk, to enable the sheriff to do what ¡he had no authority to do—take it out of the plaintiff’s possession, and sell it to satisfy the execution upon the defendants’ judgment. •

If the sheriff had had the right to levy upon the safe, and, to enable him to take it, had- requested the plaintiff to unlock the safe and remove the contents, and the plaintiff would not, a very different question might have arisen ; or if the sheriff, after taking away the safe and opening it, had brought back to the plaintiff the contents, the plaintiff would have been bound to have accepted the silk, and its return would have gone so far in the reduction of the damages. .

He -did not, however, do this. He testified that -he notified the plaintiff to be present at the opening of the sáfe ; whilst the plaintiff testified that he never received any such notice,—that the sheriff never offered to return the silk to him,, nor did any one upon the sheriff’s behalf; that he, the plaintiff, never received any intimation from any person as to where the silk was after it was taken away with the safe, and never knew, until apprized of it upon the first trial of this cause.

After the safe was opéned, the sheriff took out the silk, an'd took it to an auctioneer’s, where he had it packed in a box, which was nailed up, the sheriff putting his name upon it, and the box, at the time of this trial, had remained at the auctioneer’s for nearly six years.

A plaintiff may not unnecessarily enhance his own damage or loss so as to make the. responsibility of one who wrongfully takes property, under the supposition that he has a right to it, greater than it would otherwise be. There was an attempt to show,,something of this kind by proving the ’declaration of one of the plaintiff’s employees named Pritchard, to the effect that they gathered up everything that was in the place, and put it in the safe, when the plaintiff locked it up, and, putting the key in Ms pocket, said, “Now let him (the sheriff) touch it, and I will make Mm sweat for it.” But Pritchard was examined as a witness, and testified that the plaintiff simply told him to put the silk in the safe, to lock it up, to see that the doors of the factory were safe, and have a care, saying, ‘ And if they touch the safe, I will make him (the sheriff) sweat for it," which puts a very different coloring upon the matter, it being in evidence that the use previously made of the safe by the company was to put away silk in it, and that the plaintiff used it for that purpose before the levy. His testimony was “We kept such articles (silk in boxes and in spools) in the safe,” and that, after he bought the safe, the silk was putin it- and locked up every night.

But, though it is very clear that the sheriff would be responsible for taking both the safe and its contents, the question arises whether the defendants, who simply signed a bond of indemnity, are answerable for the sheriff’s taking away the plaintiff’s property in the safe.

All that the sheriff assumed to-'levy upon was the safe, which had belonged to the defendants in the execution, but there was no pretense that the contents of the safe belonged to them.

The sheriff was apprised that the property in it was the plaintiff’s property, but he took it because he could not take the safe, it being locked, without also taking the contents. °Were the indemnitors answerable for this \

It was held in Davis v. Newkirk, 5 Den., 95, that the indemnitors were liable for the sheriff’s levying upon and selling a certain quantity of lurnber, for, the reason that the bond contemplated such a seizure and sale; the engagement in the bond being to save the sheriff harmless for levying upon and selling the lu'mber under the execution.

This, it was held, was a virtual request to the sheriff to proceed and do what he did. It was regarded as an act done under the direction and' with the advice and concurrence of the indemnitors, for which they were as much responsible ’ as the sheriff. “.All,” says Beabdsley, Ch. J., by whom the opinion of the court was delivered, “who direct, request, or advise, an act to be done which is wrongful, are themselves wrongdoers, and responsible for all damages.” This, it was said in Ford v. Williams, 13 N. Y., 584, 585, was carrying the rule of the liability of those who aid and abet in the commission of a trespass, far enough.”

“I do not affirm,” said Dexio, Ch. J., “that that case (Davis v. Newkirk) was incorrectly decided, for there was force in saying that all the obligors in the bond might be held to have requested the seizure.” They certainly did so, for, before the sale, they gave the sheriff a bond, by which they engaged to save him harmless for levying upon and selling the lumber which he afterwards sold upon the execution, in addition to which there was some evidence tending to connect the indemnitors with the sheriff in taking away the lumber.

The bond given by the defendants in the present case, after reciting that certain personal property that appears to belong to the Hew York Silk Manufacturing Company, is claimed by other parties, engages to save the sheriff harmless for levying, attaching and selling under and by virtue of the attachment, or of any execution which may be issued in the action, aH or any personal property which he or they shall or may judge to belong to the debtor, as well as for entering upon premises for the taking of any such property. The seizure which is here contemplated, and for which they engage to be responsible, is of property which he or they shall or may judge to belong to the Hew York Silk Manufacturing Company, and it was the safe, and not its contents, that the sheriff levied upon and sold as the property of that company. If the defendants knew that the safe could not be taken by the sheriff without his taking the contents of it, also, and they had, with that knowledge, directed him to take it, they would undoubtedly have been liable. But there is nothing in the bond, or in the evidence, from which it can be inferred that they contemplated, meant, or directed, that the contents should be taken if the safe could not be taken without doing so. The value of the safe, as found by the jury, was only four hundred dollars, whilst the value of .the silk contained in it was two thousand five hundred and twelve dollars, which, with interest, amounted, at the time of the trial, to three thousand five hundred and sixty-seven dollars and four cents. In other words,, what was contained in the safe was worth six times as much as the safe itself, and, before the defendant could.be held answerable for this, large amount of property, there should, in my opinion, be some evidence to show that they knew, before they gave the bond of indemnity, or before the safe was taken, that it was locked, that the plaintiff had the key of it, and would not open it, so as to show that they were apprized that it could not be taken away and sold without also taking whatever was in it.

All that there is in the case is the bond of indemnity and that the sheriff told Mr. Douglas, one of the defendants and indemnitors, that the plaintiff ^claimed the safe and demanded a bond of indemnity, which was given, and that some months before the trial—that .is, several years after the taking—the box was examined at the auctioneer’s, at the instance of Douglas, to ascertain the value of the silk contained in it. For all, therefore, that appears in the case, it may have been that Douglas and his co-obligors would not have been willing, if they had known that the safe was locked, to authorize the sheriff to take it at the hazard of being answerable for whatever was contained in it. The plaintiffs in an execution are. not answerable for all that a sheriff may do under it, nor' are those who indemnify the sheriff.

They are responsible only so far as they may have directed or assented to the doing of the act compláined of (Averill v. Williams, 1 Denio, 501; 4 Id., 295), e. g., as in Allen v. Crary, 10 Wend., 349, where the plaintiff in the execution pointed out the property to the sheriff, and directed him to levy upon it; or, in Stewart v. Welis, 6 Barb., 79, where the plaintiff, after the sheriff had levied upon property, said that the sheriff was. going to sell it, and that he (plaintiff; had directed the levy to be made; or Fonda v. Van Horne, 15 Wend., 631, where the plaintiff directed the sheriff to levy on two cows and a calf, and told him that he would indemnify him ; or in Herring v. Hoppock, 20 N. Y., 413, where the sheriff, having levied upon a safe which was claimed by a third party, refused to sell it unless he was indemnified,—in which casé the indemnification was regarded as a ratification of the levy and the cause of the'sale ; for the bond referred to the property which had been levied upon and claimed—the .safe—and, therefore, the giving of the bond was regarded as a virtual request to the sheriff to go and sell the safe;—or in Ball v. Loomis, 29 N. Y., 412, where the plaintiff directed the taking and the sale, and indemnified the sheriff, which, I believe, embraces nearly, if not all, the cases in which this question has arisen in this State.

This objection was distinctly raised at the trial. The defendants, at the close of the case, insisted that it had not been shown that the defendants requested the sheriff to levy or remove the property in the safe; that the issuing of. the execution was not such a request, nor the giving of the bond of indemnity, which only undertook to save the sheriff harmless for taking or removing what might appear to be the property of the company, and that the property in the safe did not appear to be, nor did the defendants claim it to be the property of the company ; that the defendants were not responsible for the goods unless they requested the sheriff to levy upon, remove or meddle with,them, or-requested him to remove the safe with, the knowledge that it'- contained the goods, and that there was no evidence of any such request.

They asked that the jury should be so instructed, and as. in my opinion, there was nothing in the case from which it can be inferred that the defendants contemplated, meant or directed the sheriff to take the safe, no matter what might be in it, if he could not take it otherwise, I think they were entitled to the instruction asked, and that there should be a new trial, unless the plaintiff consents to reduce the verdict to the value of the safe and interest.

Larremore and J. F. Daly, JJ., concurred;

Judgment accordingly. 
      
       See also Murray v. Binninger, 3 Abb. Ct. App. Dec., 336, and cases in note.
     