
    William M. Hill, Respondent, v. Charles W. White and Others, Appellants.
    
      A judgment creditor receiving the proceeds of .an execution sale—he is not liable for a trespass by the sheriff—when otherwise in the case of an attachment—removal of property levied upon—facts reviewable ivithout an exception to the findings.
    
    The receipt' hy the plaintiff in an ordinary judgment and execution of the . ' proceeds of the execution sale, in ignorance of the fact that the levy was-wrongful, does not, of itself, render him "liable for the trespass; the rule is-, otherwise, however, where the particular property sold under the execution wa's seized under‘a warrant of attachment obtained on an-affidavit describing; the property made by the plaintiff with knowledge of the adverse claim to such property. The plaintiff is presumed to know that the attached property was required to be first applied in satisfaction of the judgment, and that the moneys received by him included the proceeds of such property.
    The failure of an officer levying an execution to remove the property levied upon from the place at which the levy is made, does not invalidate the levy.
    Where a'decisión filed in an action tried by the court states separately the facts found and the conclusions of law, the questions of fact may be reviewed without an exception if the case contains a certificate that it contains all the evidence.
    Appeal by the defendants,' Charles W. White and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in . the office of the clerk of the county of Schuyler on the 12th day of ¡November, 1894, upon the decision of the court rendered after a trial before the court without a jury at the Schuyler Trial Term..
    
      Frederick Collin for the appellants.
    
      Gabriel L. Smith, for the respondent.
   Merwin, J. :

In the complaint in this action it is alleged that in the .latter part of the summer or during the fall of 1889, the defendants wrongfully entered upon premises of plaintiff and oné Beecher and took possession of and sold, or took possession of and converted' to their own use, certain property belonging to the plaintiff and.Beecher, consisting of an engine and belting, a shingle mill and a cider mill, of the value of $400, and that Beecher had conveyed all his interest to the plaintiff. In the answer's of the defendants there was in substance ' a general denial. It was.also alleged that the defendant White was-sheriff and the defendant Wakeman a deputy sheriff of the county, and that the property was taken by them solely in their official capacity and under and by virtue of a writ of attachment issued out of the Supreme Court, and that the cause of action of the plaintiff did not accrue within one year before the commencement of the action. It w-as also alleged that the property was at the time of the seizure and sale the property of Joseph L. Fleming and was s.old by said ' sheriff by virtue of an execution • issued on a judgment obtained by the defendant Haas against .said Fleming.

Upon the trial it was conceded that the action was in trover, and the court'found that the property ivas chattel property. It appeared that on March-1, 1889, Joseph L. Fleming, then being in possession of the property, transferred it to Albert S. Winfield, who, at the same date, transferred an undivided one-half thereof to Mark A. Beecher, and that on the 10th of June, 1889, Winfield transferred the other half to the plaintiff. On the 1st day of August, 1889, the defendant Haas, a creditor of Joseph L. Fleming, in an action in the Supreme Oourt for the recovery of his debt) obtained an attachment against the property of Fleming. This was placed in the hands of the- defendant Wakeman, a deputy sheriff, for execution, and on the 3d of August, 1889, as the defendants claim, the attachment was levied upon the property in question. Oh the 18th óf October, 1889, Haas, in his action, obtained judgment against Fleming after service of summons by publication, and execution thereon was issued and delivered to Wakeman, as deputy sheriff, who, on the 21st of October, 1889, as the defendants diaim, levied upon the same property under said execution, it being then, as the officer testifies, in his possession under the attachment, and the same was sold by him under said execution on the 8th of November, 1889, at public sale.and. bid in by Fanny B. Winfield for the sum of $186.11, which was apparently the amount of the judgment of Haas and the expenses of the sale.

No question is made upon this appeal as to the ownership by plaintiff or his assignor of the property or as to its value.

The claim of the appellant Haas is that upon the facts he is not responsible for the conversion. The claim of the other appellants is that the one.year Statute of Limitations (Code Civ. Proc. § 385) protects them upon the theory that the levy on. the attachment) as well as on the execution, was more -than one year before the commencement of'this action, on the 5th of" November, 1890.

Haas received from the sheriff the proceeds of the sale or the property upon the execution. ' In obtaining the attachment, Haas made an affidavit which, among other things, stated that Fleming “has property in the State of New York, to wit: one feed mill, one ' shingle mill, one "cider mill, as plaintiff (Haas) is informed and believes.” It was also stated in the affidavit that Fleming went away about the spring of 1889 and wap insolvent, and that before leaving the State he attempted to convey the whole of his said property to Albert S. Winfield for a nominal consideration. The affidavit closed with the statement that the plaintiff (Haas) applied for a warrant of attachment against the property of Fleming, as provided by the Code of Civil Procedure. The property above described included, as. it may be inferred from the evidence, the property in -controversy. . The attachment was in the usual form, requiring the sheriff to attach and safely keep so much of the property within his •county which the said Fleming has, or which he may have, at any time before final judgment, as will satisfy the plaintiff’s demand and costs. The sheriff, according to his return, levied on the property in question on August third, and made thereof an inventory and appraisal. The summons in the action was then served by publication. On October twelfth application was made to court for judgment, and the plaintiff Haas was present and gave testimony as to his claim. An affidavit was presented, made by the attorney for the plaintiff, to the effect that an attachment had been issued and levy made on the property here involved. (Code, § 1217.) Judgment was granted, which recited the proof of the issuing and levy of the attachment. The execution on the judgment' was issued October 19, 1889. The execution itself is not in evidence. Parol proof of its issuing was given without objection. Presumptively it stated, ■as required by section 1370 of the Code, that the sheriff must first satisfy the judgment out of the property attached, and that it did so state appears from the certificate of sale which is in evidence. ' It ■does not appear whether Haas was present at the sale.

The fact, simply, that a plaintiff in an ordinary judgment and ■execution receives the proceeds of a sale on the execution, in ignorance of the fact that they are the result of a trespass, would not make the plaintiff responsible for the trespass. (Clark v. Woodruff, 83 N. Y. 518.) If, however, he receives and retains the proceeds, with knowledge of the facts, he is liable. (Freem. Exns. § 273; Murray v. Bininger, 3 Abb. Ct. App. Dec. 336.) In Abbott v. Kimball (19 Vt. 552) it is said that, an attaching creditor is not liable for a wrong committed by tlie officer,' unless he in some way participated in the wrong, or ratified or confirmed it after becoming aware of it. Counselling the act which creates the liability of the ■officer may be enough. (Hyde v. Cooper, 26 Vt. 552.) In Averill v. Williams (1 Den. 501, 503) it is said an action will not lie against the plaintiff in the execution unless he interfered with the levy, or assented to what had been done by’the officer.

In the present case Haas, by the judgment and execution, not. only put the officer in motion, but directed him to take and sell the specific property here in question. More than that, he initiated by his affidavit for the attachment the attack or claim on this property, and had then information of the claim of Winfield, from whom the plaintiff derives title. Haas is presumed to know the character of the judgment in his favor and of the execution, and, if so, he presumptively knew, when he received the proceeds of the sale, that they included the proceeds of the sale of this property, as it was required to be first sold. It seems to have been practically conceded at the trial that the property did not at the time of the attachment, belong to the debtor Fleming. .

The evidence warrants, I think, the finding that Haas .participated in the. transaction from the start with knowledge of the adverse claim, and, if so, the trial court did not err in holding.him responsible.

The question whether the defendants White and Wakeman. are protected by the short Statute of Limitations depends on whether-an actual levy was made upon the property by virtue of the attachment or execution prior to the 5th of November, 1889. The trial court finds that the officer did not take possession ; that neither the-plaintiff nor Beecher had any knowledge of any levy; and, in effect, that there was no levy on either writ prior to November fifth. The appellants claim that this finding is against the evidence. On the part of the plaintiff there was general evidence that Winfield, and Beecher, or the plaintiff and Beecher, were in possession from March 1, 1889, up to the time of the sale, from which it might, in the-absence of any "other evidence, be inferred that there was no actual levy under the attachment or execution. On the part of the defendant, Wakeman, who had the attachment and execution, testified, upon being shown the warrant of attachment, that as "deputy sheriff he levied that attachment. It was then said by plaintiff’s counsel, “ we don’t question anything of' that kind ; . * * * that he did-all these things we don’t question.”

The warrant and inventory,- judgment roll and affidavit for attach-merit were put in evidence. From "the return of the officer, which was a part of these papers, it appeared that under the writ the property had been seized and taken into possession of the officer, an inventory and appraisal made, and a copy of the attachment and inventory served upon Mr. Hill, as one who claimed the property at that time. Mr. Wakeman further testified that upon receiving the execution on October 21, 1889, he immediately levied upon the property, and that the property was in my possession at the time.” The witness was not asked by either side for any further details as to either levy, and no further evidence was given on the subject. The plaintiff did not" deny the service upon him of a copy of the attachment and inventory, and neither the plaintiff nor Beecher testified that they had no notice of the levies, and no rebutting evidence was offered as to the levies as testified to or certified by the •officer. '

It appeared that the property was not removed. This did not invalidate the levy. (Roth v. Wells, 29 N. Y. 471, 485.)

The finding that there was no actual levy prior to FTovember 5, 1889, was, I think, against the weight of evidence. The officer was ■entitled to the benefit of the statute, although as to the plaintiff he may have been a trespasser. (Cumming v. Brown, 43 N. Y. 514.)

But it is said that the exceptions filed by the appellants to the decision of the court aré not definite enough to enable them to raise this question. The decision stated separately the facts found and the conclusions of law. By section 992 of the Code exceptions to findings of fact in actions tried by the court are forbidden, and questions of fact in a case like the present may be reviewed upon appeal without excejhions, provided that the case contains a certificate that it contains all the evidence. (Porter v. Smith, 107 N. Y. 531; Mead v. Smith, 28 Hun, 639 ; Matchett v. Lindberg, 2 App. Div. 340.) There is here such a certificate.

All concurred.

Judgment affirmed as to the appellant Haas.

Judgment reversed as to the other appellants and a new trial granted, with costs of appeal to such appellants to abide the event.  