
    Jacob C. Cook et al., Plaintiffs and Appellants, v. John Kelly, Sheriff of the City and County of New York, Defendant and Respondent.
    1. Where a factor, having possession of goods consigned to him, on which he has a lien for charges, makes a valid general assignment for the benefit of his creditors, and delivers such goods to his assignee, and they are subsequently seized by the Sheriff under process against the factor, the assignee is the proper person to whom the owner of the goods should tender the charges, in order to acquire a right to their possession.
    2. The owner having made such tender to the assignee, and having taken the goods from the Sheriff's possession, a subsequent retaking of them by the Sheriff is tortious, and makes him liable to an action for their conversion,
    3. The testimony of a witness, that himself and partner, having a special property in certain goods, executed a chattel mortgage thereon, whifch he thought was not delivered, without proof of delivery of the goods or the filing of the mortgage, is not evidence of a mortgage which will affect the rights of the general owner of the goods or of the mortgagor’s assignee.
    . (Before all the Justices.)
    Heard, May 24, 1862;
    decided June 14, 1862.
    This action was brought by Jacob C. Cook and Andrew Nellis, to recover damages for taking and converting to the®use of the defendant twenty-five bales of hops. The goods in question, in November, 1858, belonged to the plaintiffs, and were then sent by them from Montgomery-county, in this State, to a firm in New York named Harvey & Dunn, to be sold on commission, receiving from them, as an advance thereon, their acceptance of a draft for $300, dated November 22d, 1858, and payable ninety days after date, to the order of a Mr. Young. Harvey & Dunn also paid nearly fifteen dollars for freight on such goods, and received them into their store, where they remained until seized by the defendant. In 1859, on the 23d of February, Harvey & Dunn made an assignment of all their property to an assignee, (Eunyon,) and put the goods in question in his possession, telling him they were commission goods. On the next day, (the 24th of February,) two warrants of attachment were issued out of the Marine Court of this city, against the property of Harvey & Dunn, by virtue whereof the defendant, who was Sheriff of the City and County of Hew York, on the same day seized the hops in question. The draft became due on the 23d of February, when it was protested, but was paid by the plaintiffs within a day or two afterwards. In March following, the plaintiffs tendered to the assignee, Bunyon, the amount of freight paid by Harvey & Dunn, and their charge for storage, and offered to deliver them such draft; they then obtained possession of the goods during the absence of the defendant’s storekeeper, and removed them to another store, where the defendant repossessed himself of them.
    Judgments were obtained in the actions in which such attachments were issued, and executions issued thereon, under which the defendant held such goods at the time of .the commencement of this action, and sold the same during its pendency. One of the firm of Harvey & Dunn testified that on the 23d of February, 1859’, whether before or after the assignment to Bunyon did not appear, himself and partner executed a mortgage of the hops in question to Messrs. Gardner & Myer, which he thought was not delivered, to secure them for certain liabilities assumed by them to a creditor of the former, as sureties for the mortgagors, to be payable on demand, after their payment of any sums as such sureties. There was no other evidence of its delivery, and no evidence of any delivery of the hops, or record of the mortgage.
    On the trial, before Mr. Justice MoítoeAíf and a Jury, March 18, 1861, the complaint was dismissed, to which decision the plaintiffs’ counsel excepted. A new trial was moved for at Special Term, and denied.
    
      L. S. Chatfield, for. plaintiffs, appellants,
    argued that the mortgage was unauthorized and could not bind the goods; that the title was in the plaintiffs, not in the consignees, citing Winter v. Coit, (3 Seld., 288,) Covell v. Hill, 2 Id., 374,) Gardiner v. Suydam, (3 Id., 357.) That the consignees’ lien was not a leviable interest, Ransom v. Miner, (3 Sandf., 692.) Grosvenor v. Allen, (Clarke, 275,)
    
      
      Wilkes v. Ferris, (5 Johns., 335,) Handy v. Dobbin, (12 Id., 220,) Holmes v. Nuncaster, (Id., 395,) Bogert v. Perry, (17 Id., 351,) Denton v. Livingston, (9 Id.; 96,) Ingalls v. Lord, (1 Cow., 240,) Ferguson v. Lee, (9 Wend., 258,) Bailey v. Burton, (8 Id., 339;) that if they had an interest it passed to the assignee, and was satisfied by the tender, citing 2 Rev. Stat., 4th ed., 184; Gouverneur v. Warner, (2 Sandf., 624;) and that the case was therefore the ordinary case of trespass or trover against the Sheriff for seizing the goods of A. to satisfy the debt of B., and such an action can always be maintained. (Chitty’s Pl., 129, 130 ; Wintringham v. Lafoy, 7 Cow., 735; 10 Wend., 349; 4 Johns., 450; 8 Wend., 610; Stimpson v. Reynolds, 14 Barb., 506.)
    The second seizure, after the owner had obtained peaceable possession, was a trespass for which this action will lie. {Hall v. Tuttle, 2 Wend., 475.)
    
      A. J. Vanderpoel, for defendant, respondent.
    To the point that the right of the consignees was leviable, cited Saul v. Kruger, (9 How. Pr., 569,) 3 R. S. 76, § 1, 5th ed., and insisted that the tender to Runyon could not affect the rights of the- Sheriff.
   Robertson, J.

At the time of the tender to Runyon, he was entitled to the possession of the goods in question, if he was bona fide assignee, as against every one but the plaintiffs. The plaintiffs were entitled to the possession as against every one but him, if he was the lawful assignee of the claim of Harvey & Dunn. The assignment to him being prima facie valid, and no evidence offered impeaching it, he was the proper person to whom to make such tender, and upon that tender the plaintiffs’ right to the possession was complete and free from any incumbrance. (Kortright v. Cady, 21 N. Y. R., 343.)

The subsequent taking of the hops by the defendant was tortious, and makes him liable,“in this action, for their value.

There was no evidence of any delivery of the hops in question to the mortgagees, or filing of the mortgage to Gardiner & Myers, or even of its delivery, the only witness examined as to its execution, testified that he thought it was not delivered; and it was therefore inoperative as against the assigneé or these plaintiffs.

The judgment, therefore, ought to h.e reversed and a new trial take place, with costs to abide the event.

Bosworth, Ch. J., concurred in this opinion.

Babbour, J., concurred in the conclusion.  