
    Alfred A. Blair et al., Resp’ts, v. James A. Flack, as Sheriff, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 16, 1894.)
    
    1. Appeal—First instahce.
    A point, not taken on the trial, cannot be raised on appeal.
    
      '£. Same.
    A defense, not set up in the answer or alluded to on the trial, is not available on appeal.
    
      3. Evidence—Documentary.
    A copy of an affidavit purporting to have been made by defendant, where the original, in an action by a third party against him, was presented in court and used by his attorney as an original, genuine paper, is not inadmissible on the ground that there is no proof that the defendant signed the original. •
    4. Former adjudication—Parties.
    Persons not parties to an action are not bound by the judgment therein.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 6,1892, which affirmed a judgment in favor of plaintiffs entered upon a Verdict, and also affirmed an order which denied a motion for a new trial.
    This action was brought against defendant, as sheriff of the city and county of Mew York, to recover the amount of a check given by one Horace J. Adams to take the place of certain property levied upon by defendant by virtue of an attachment obtained in an action brought by plaintiffs against the Illustrated Mews Company.
    The facts, so far as material, are set forth in the opinion.
    
      Abram Kling, for app’lt; Herbert T. Keteham, for resp’t.
    
      
       Affirming 50 St. Rep., 479.
    
   Haul, J.

The plaintiffs obtained an attachment against the property of the Illustrated Mews Company, which was placed in the hands of the defendant as sheriff, and he, by virtue thereof, levied upon certain property as belonging to the news company. Mr. Adams claimed that the property belonged to him, and by an arrangement between him, Mr. Costa, a clerk of one of the sheriff’s deputies and the attorney of the plaintiffs, he, Adams, gave a check to Costa to take the place of the property attached, and that property was then delivered to Adams and disposed of by him. The sheriff drew the money on the check, and Adams, claiming that the property attached belonged to him, and that the check simply took the place of it, commenced an action against the sheriff to recover the money, and he recovered judgment, which was paid by the sheriff. These plaintiffs were not parties to that action, and, therefore, were not bound by the judgment recovered therein. After the plaintiffs had recovered judgment in the action in which the attachment was issued, and had failed to collect the amount thereon, they commenced this action against the sheriff, claiming that the check was depositied by Adams as absolute security for the payment of any judgment they should recover. Upon the-trial they gave evidence tending to establish their claim that the check was deposited for the purpose alleged by them, and Costa and Adams testified on behalf of the defendant that it was deposited simply to take the place of and to stand for thfe property attached. The trial judge charged the jury that if the arrangement as to the check was as claimed by the plaintiffs they were entitled to recover; but that if it was as claimed by the defendant he was entitled to their verdict. The charge was not complained of or excepted to, and the jury rendered a verdict in fa.vor of the plaintiffs.

The defendant upon this appeal alleges several errors, for which he claims the judgment should be reversed:

1. It is claimed that the sheriff was not liable for the contract made by Costa, a clerk in the employment of a deputy sheriff, who was not known to the sheriff, and was in no way authorized to represent him. The answer to this is that no such point was taken upon the trial. It could have been raised by exception to the charge to the jury, or by request to charge; but if it was not, and it was not mentioned as one of the grounds for a nonsuit. There was absolutely no claim upon the trial that Costa was not authorized to represent and bind the sheriff by the arrangement he made as to the property attached; While the plaintiffs’ attorney was under examination as a witness, and was testifying as to the arrangement as to the attached property and the check made between him, Costa and Adams, he asked: “ Will you state what conversation took place at that time ? The counsel for the defendant then said: “ To preserve oiir rights we object to the declaration of Costa against the defendant.” The judge overruled the objection, saying: “ Under the declaration of counsel that it will be connected I will allow it to be given.” And the witness then testified to the arrangement made by Costa acting for the sheriff. Evidence was subsequently given tending to show Costa’s authority, and the recognition of that authority by the sheriff, and the objection to his evidence was in no way subsequently renewed. In the subsequent stages of the trial, we think it was assumed that Costa was authorized to act for and bind the sheriff, and, as a witness for the defendant, he did not deny his authority.

2. The plaintiffs put in evidence what they claimed to be a copy of an affidavit made by the sheriff and used by his attorney in the action of Adams against him. It is now objected that there was no proof that the sheriff signed the original affidavit It was presented in court and used by the sheriff’s attorney as an original, genuine paper, and for reasons more fully stated in the prevailing opinions in the court below, we think the evidence was sufficient to authorize the introduction of the copy in evidence.

3. It is contended on behalf of the defendant that the trial judge erred in excluding the judgment roll in the action of Adams against the sheriff. The plaintiffs were not parties to that action, and were not bound by the judgment rendered therein. The precise statements contained in the judgment roll were not important or material. The defendant had the benefit of the proof that Adams claimed the proceeds of the check in that action and recovered the same. If the plaintiffs established that the check was deposited for their security as claimed by them, then the sheriff was_ bound to keep it for them, and if he delivered the property attached to Adams under an arrangement so loose and uncertain that he could not defend the check or its proceeds against him, that was his misfortune, and Adams’ recovery against him furnished no defense to this action. If the check was deposited under the arrangement claimed by the sheriff, then, even if the money remained in his hands, the plaintiff would not be entitied under the arrangement to receive it. So in any' event the judgment roll was immaterial. But, as before stated, the defendant had the full benefit of the recovery by Adams in that action.

The defendant further claims that he was bailee of the check and its proceeds, and that he should have been permitted in defense of this action to show that the true owner of the property had taken it from him by legal process. The answer to this is that no such defense was alleged in the answer, or claimed or even alluded to upon the trial.

We have now noticed all the points made by the defendant against the plaintiffs’ recovery, and while we fear that injustice has been done to him by the verdict of the jury, we find no legal error upon which a reversal of the judgment could be based.

The judgment must, therefore, be affirmed.

All concur, except Bartlett, J., not sitting.  