
    COLWELL v. BLEAKLEY.
    March, 1864.
    Where a former judgment was pleaded as an estoppel to proving certain facts in a subsequent case, and it appeared that in a former suit between the same parties, the existence of such facts had been set up at the trial, but it did not appear that any proof had been offered in support of such allegation of fact, nor on what ground the defense rested, nor on what the verdict proceeded, — Held, that the former judgment was no bar to an inquiry into the same facts again.
    In an action against a sheriff for a false return, it is no defense that the judgment debtor against whom the execution was' issued, held the property, which had been levied on, by an assignment fraudulent as to one of the assignors, if another of them had the right to convey.
    Joseph Colwell sued William Bleakley, sheriff of Westchester county, in the supreme court to recover damages- for a false return.
    The plaintiff alleged that as assignee of Buhce & Co., he had issued execution-on a judgment in their favor against the New York Steam Mill and Machine Co., which was possessed of certain property, on which the defendant had levied, hut which he had afterward released, and that he had returned the execution unsatisfied. The defense was that one Albert Booth was the real defendant in the action, as it was upon his request and indemnification that the defendant had released the property levied on. That the New York Steam Mill and Machine Co., made claim to the property in question, though a fraudulent assignment from the firm of Montgomery & Lund. That the said firm had previously been Montgomery & Garrabant, the interest of Garrabant having been purchased by Lund. That against the firm of,Montgomery & Garrabant, Booth had a judgment under which he had levied on the property in question, claimed by the New York Steam Mill & Machine Co. The defense, moreover, alleged that the fact of the fraudulent assignment had been established in an action brought by Booth against Bunce & Co., and that by the judgment in that action, the present plaintiff, who represented Bunce & Co., was estopped.
    On the trial the defendant moved for a nonsuit, which was granted.
    
      The supreme court, at general term, affirmed the judgment of the circuit, on the ground that the judgment in the former case was a bar to the action, and that the fact that an appeal had been taken made no difference as to the effect of the judgment as an estoppel.
    The plaintiff appealed to this court.
    
      A. & M. 8. Thompson, for plaintiff, appellant.
    
      R. A. Van Pelt, for defendant, respondent.
   By the Court.

Hogeboom, J.

The plaintiff is the- assignee of Bunce, Esler & Cobb, and brings this action against, the sheriff of Westchester to recover damages for a false return to an execution issued to him upon a judgment recovered, by Bunce, Esler and Cobb against the New York Steam Mill and Machine Company. This judgment was obtained on- March 31, 1860, for two thousand five hundred and thirteen- dollars, and fifty-eight cents, and execution was issued thereon on the-same day, upon which, about the same time, the sheriff levied on personal property of the value of several thousand dollars, but subsequently returned the execution unsatisfied. The plaintiff gave prima facie evidence sufficient to show that the New York Steam Hill and Machine Company were in possession of' the said property, and the apparent owners thereof.

The defense set up in the answer of the defendant was in substance that this action was defended by Alfred Booth; that the property in question, prior to the incorporation of the New York Steam Mill and Machine Company, belonged to Montgomery & Lund, who organized the company in question, and transferred to it all their property for the purpose of defrauding their creditors, but in reality for their own benefit. That Booth, on December 17, 1859, recovered a judgment against Montgomery and Garrabrant for two thousand two hundred and twenty-four dollars and eighty cents, and issued an execution thereon on the 20th of the same month to the sheriff of Westchester, under which the sheriff sold to him all the property now in question, and also a steam engine, which engine Booth afterward took to New York; and while it was there it was levied upon and sold under an execution in favor of Bunce, Esler &' Cobb, and purchased by the latter firm; that Booth thereupon commenced an action in the supreme court against Bunce, Esler & Cobb and other persons who indemnified them, to recover the value of said steam engine, and after a litigation obtained judgment therein in his favor. He therefore claims that the plaintiff, who.succeeded to the rights of Bunce, Esler & Cobb, is estopped by thé judgment in that action from recovering in this action against the defendant, who is represented here by Booth. But the defendant did not, on the trial of this action, prove all the foregoing facts.

The only material facts proved on the defense were, that Booth was the indemnitor of the sheriff; that the parties to the former suit claimed the steam engine in the modes hereinbefore stated, to wit: The plaintiff therein as the judgment creditor of Montgomery and Garrabrant, and as the purchaser of the property on execution issued on that judgment; the defendants therein as the judgment and execution creditors of the New York Steam Saw-Mill and Machine Company, under the judgment before mentioned; that the jury rendered a verdict for the plaintiff, on which judgment was entered; from which judgment an appeal had been taken to the court of appeals. The judgment roll in that action was also introduced in evidence, having been filed in Orange county on October 25,18 G2; but the contents of the judgment roll are not set forth in the case.

On this evidence the defendant claimed that the recovery of the latter judgment was a bar to this action, and on that ground moved to dismiss the complaint; which motion the court granted, and directed the jury to find a verdict for the defendant. The plaintiff’s counsel objected. An appeal is taken to this court.

The point principally discussed here is, whether the appeal taken from the judgment in question deprives it of its force as an estoppel. But, independent of that question, I think the non-suit was' erroneously granted.

1. I think it does not sufficiently appear that the verdict of the jury was founded upon the fact that the organization of the Steam Saw-Hill and Machine Company was a fraudulent contrivance by Montgomery and Lund, for the purpose of defrauding their creditors, and, therefore, void as against the plaintiff in that action. The proof is that such a claim was set up on the trial. It is not shown that there was evidence to support it; it is not shown (for the pleadings are not before us) on what ground the defendants in that action defended the same; nor on what ground the verdict of the jury proceeded. The effect of that judgment as an estoppel depended upon the proof of facts extrinsic to those which appeared in the judgment record, and they were not sufficiently established.

2. But a more decisive objection consists in the fact that, assuming the fraudulent purpose of Montgomery and Lund in organizing the Steam Saw-Mill and Machine Company, and, therefore, that it was ineffectual against their creditors; there was still an interest in the property, to wit: the interest of Lund, which was not reached by the execution of Booth, and which was reached by the execution of Bunce, Esler & Cobb. The defendants in Booth’s execution were Montgomery and Garrabrant, and not Montgomery and Lund. Lund had transferred his interest in the property to the Steam Saw-Mill and Machine Company, against which the execution of Bunce, Esler & Cobh was issued; and there were no creditors of Lund to dispute the validity of such transfer. That interest being subject to levy and sale under that execution, the sheriff was bound to seize and sell it, and not return the execution unsatisfied.

If it be said the same fact must have appeared in the former suit and in such an event would have led to a diminution of the recovery, the answer is, we are not in possession of facts transpiring on that trial, to show that such was not the case. We do know from the proceedings which have come up to us on appeal in that case, that such deduction should have been made if it was not, and that probably an error was committed- in that respect, on the trial of that cause. At all events, it is quite apparent in this case that there was such an interest, which t¡he - execution in the Booth suit could not legally seize.

If these views are well founded, they must lead to the reversal of the judgment, independent of the question of the effect of the former judgment as an estoppel. There will be no reason to regret such a result if it is now legally attainable, inasmuch as we have already depided to reverse the judgment in the action of Booth; and when judgment shall be perfected on the result of that appeal, it will necessarily deprive the judgment which has been pleaded as an estoppel, of the conclusive character attributed to it. This would probably lead to some application to the supreme court in this case, when it shall be recalled to that tribunal, to obtain some proper way the benefit in this suit of the reversal of the judgment in that suit — a benefit to which the party would be equitably entitled.

I am for reversing the judgment of the supreme court, and ordering a new trial, with costs to abide the event.

All the judges concurred.

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