
    FREDERICK REINECKE, Plaintiff, v. CHRISTOPHER FLECKE and Another, Defendants.
    I. Exemption Laws.—Laws op 1866, Chap. 782.
    1. Proof required from plaintiff as to his property, other them articles specifically exempted, not being over $250 in value.
    
    1. If it does not appear in evidence that he has property other than that levied on, he need only prove that that property is not worth more than $250. He need not show by proof that he does not own any other property  (Wilcox v. Hawley, 31 Jff. T. p. 658, is not in conflict; Smith®. Slade, 57Barb. B. 641, approved).
    
      Before Barbour, Ch. J.. Curtis and Sedgwick, JJ.
    
      Decided April 7, 1873.
    Exceptions ordered to "be heard at General Term in the first instance.
    The action was for the recovery of personal property. The defence was that the defendants were justified because the taking complained of was under an execution against the plaintiff. On the trial the plaintiff claimed that this property was exempt from levy of execution. To support this, he proved that he was married, and had five children with whom he lived ; that the property taken was all the tools he had, that they were used by him in his trade of carpenter, that he could not work without them, and that they were worth $240. The defendants presented in due form the objection, that not enough testimony had been given to take the case to the jury on the question of exemption. This was the only point argued before the General Term.
    The exemption" is claimed under the act of April 24, 1866, which provided that in addition to the articles at that time exempt, there should be exempt, “necessary “household furniture and working tools, and team, “professional instruments, furniture, and library, owned ‘1 by any person being a householder, or having a family “for which he provides, to the value of not exceeding $250,” etc., etc.
    On the trial the case was submitted to the jury, who rendered a verdict for the plaintiff, assessing the value of the whole property at $240, and the value of the property not returned at $50; and to special questions submitted to them they answered as follows:
    
      First. Were the tools taken by the defendants necessary for the plaintiff in his trade % Yes.
    
      Second. What was the value of the tools taken ? $240.
    
      
      Third. Were any of the tools not returned to the plaintiff? Yes.
    
      Fourth. If not returned, what was the value of it? $50.
    The court ordered a suspension of judgment, and directed the exceptions to be heard in the first instance at General Term.
    D. M. Porter, attorney, and of counsel for plaintiff,
    urged:
    •I. The plaintiff was a householder, and the tools in question were all the property the plaintiff had ; he was a carpenter, and used these tools; and they were necessary, as he could not work without them; he was poor, and wanted them, and they were therefore exempt from levy under the execution (Laws, 1866, page 1686; 1860, ch. 152; 159, ch. 1834; Smith Slade, 57 Barbour, 637; Wilcox v. Hawley, 31 N. Y. 648, 658).
    II. It is sufficient that the plaintiff shows facts that prove or tend to prove, the exemption (Smith v. Slade, supra).
    
    It is not necessary to show that he had no other articles exempted by statute; he may elect (Smith v. Slade, supra; Wheeler v. Cropsey, 5 How. Pr. 288; Hawley v. Wilcox, supra; Seaman v. Luce, 23 Barb, 242, 252; Lockwood v. Younglove, 27 Barb. 506, 508; Wilcox v. Hawley, supra).
    
    The defendants’ exceptions should be overruled and judgment ordered on the verdict with costs.
    
      Henry Wehte, attorney, and of counsel for defendants,
    urged:
    I. To entitle the plaintiff to recover, plaintiff had to show:
    1. That he is a householder.
    2. That the tools were necessary for the carrying on of his trade.
    
      3. That all his tools ($25 worth, specifically exempt), his necessary household furniture (besides the articles specifically exempt,) his library and instruments, and his team did not exceed in value in the aggregate the sum of $250.
    If he failed to establish any one of these facts, his action must fail.
    1. The seizure of the plaintiff’s property by the'defendant, a public officer, acting under a lawful process in the line of his duty, will be presumed by the court to be a valid and lawful seizure unless, and until proved otherwise by affirmative testimony on behalf of plaintiff.
    2. The property is subject to execution unless it is clearly established to be property exempt from execution by the provisions of the exemption laws (Rev. Statutes, part 3, chap. 6, title 5, article 2; Laws of 1842, chap. 157; Laws of 1860, chap. 782).
    3. The design of the legislature in passing the acts of 1842 and 1866, was evidently to protect the various classes of the people in the possession of the instruments necessary for earning the support of a family, together with such household furniture as may be essential for the proper housing, keeping, clothing of and cooking for the family; the implements of the farmer-, the tools of the mechanic, the instruments and the library of the professional man, together with reasonable household furniture, are exempt, subject however to the condition that the aggregate of the exempt property (besides the property exempted by the Revised Statutes) must not exceed two hundred and fifty dollars (Wilcox v. Hawley, 31 N. Y. 648).
    4. To interpret the statutes differently would exempt, in addition to the articles exempted by the Revised Statutes, property of the value of twelve hundred and fifty dollars.
    II. The exceptions should be sustained, and judgment rendered for the defendant.
    
      
       Suppose it is shown in the evidence given on behalf of defendant that the plaintiff owned property other than that taken, on whom does the .burthen of proving the value of that other property rest?
    
   By the Court.—Sedgwick, J.

The defendants’ counsel claims that there was not enough to go to the jury as to the exemption, because the plaintiff gave no testimony tending to show (1) that he was a householder, (2) that the tools were necessary for the carrying on of his trade, and (3) that all the tools (besides $25 worth specifically exempt), his necessary household furniture (besides the articles specifically exempt), his library and instruments, and his team, did not exceed in value in the aggregate the sum of $250.

As to the first two points, I think the learned counsel for the defendants has misapprehended the testimony given. It fully makes out all that on these points the statute particularizes.

The third point is supported by the counsel on the proposition that the plaintiff must show every fact necessary to constitute an exemption, having the presumption against him that the action of the officer under the execution was valid.

The plaintiff could not be called on to do more tha.n to give facts in evidence, that tended to prove the exemption under established rules of testimony. If there was a presumption in his favor, he might rely on it without going into testimony to reinforce it. If the absence csr testimony on a given point would benefit him, on the ground that things not shown by proof to exist, are as if they did not exist, he may rely on that absence of testimony. There was no presumption that he had any property of any kind, until there was evidence given as to it. There was no presumption that he owned the tools in question. If the pleadings had not admitted that fact, the law would not have recognized it without proof. When he proved he had the tools, the rule of law that would govern the jury’s action would be, that there was no question in the case as to other property than the tools. He could not be called on to prove that the value of the tools, with the value of something which was not shown to exist, was $250 or less. Nor was he called upon to say that he had no furniture, no library, no team, etc.

We are entirely satisfied with the rule stated in Smith v. Slade, 57 Barb. S. C. R. p. 641, that it is sufficient for a plaintiff to show, that the articles levied on and claimed to be exempt, are those specified by the statute, are necessary, are within the value of $250, etc., without going into proof of what else he may own.

In Wilcox v. Hawley, 31 N. Y. R. p. 658, Judge Davies said that the testimony given by plaintiff, that the household furniture owned by him (which was not taken under execution), with the team (which was taken and claimed to be exempt), together was not of a greater value than $250, with the other facts the plaintiff • showed, were sufficient to make his case under the statute. He did not, however, decide that proof as to the household furniture was necessary to the plaintiff’s case.

The defendants presented no other point for consideration. The defendants’ exceptions should be overruled; judgment on the verdict for plaintiff entered, with costs.  