
    John C. Freeman, Rec’r, App’lt, v. Hugh J. Grant, Sheriff, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    1. Conversion.
    Prior to the execution of an assignment for creditors the sheriff received two executions against the assignors under which he subsequently levied, and refused to deliver the property on demand of the assignee. A surplus was realized upon the sheriff’s sale, but other executions coming into the sheriff’s hands subsequent to the assignment and the assignee desiring to release the balance of the stock so that he might sell it himself, an arrangement was entered into by which the latter paid a sum sufficient to make up the amount of such executions to the sheriff, who then released his levy. Held, that these facts did not constitute a conversion of the surplus by the sheriff.
    2. Same—Pleading—Amendment.
    The court refused to allow the complaint to be amended by inserting the word “money” so as to conform it to the facts proved. Held, no error; as that would have permitted a recovery on an entirely different cause of action.
    3. Same.
    After the court had decided to dismiss the complaint, it refused to allow defendant to withdraw a juror so as to permit a motion to be made at special term to amend the complaint. Held,_ that the disposition of such an application rests so largely in the discretion of the trial court that the manner of its exercise after affirmance will not be reviewed here.
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment entered on the dismissal of the complaint at circuit.
    
      John B. Greene, for app’lt; Wales F. Severance, for resp’t.
    
      
       Affirming 30 St. Rep., 143.
    
   Parker, J.

The complaint alleged the making of a general assignment for the benefit of creditors by the firm of Kaughran & Barrett to Miles O’Brien; an acceptance of the trust and the taking possession of the assigned property by the assignee; the plaintiff’s subsequent appointment and qualification as receiver of the estate of Kaughran & Barrett, and the delivery of possession thereof by Miles O’Brien to him pursuant to the order of the court.

It further averred that during the time said assigned property was in the possession of O’Brien, the assignee, the defendant in this action, as sheriff of the city and county of New York, wrongfully and unlawfully took from the possession of said O'Brien" and carried away large quantities of said goods and property so held and owned by said O’Brien as such assignee, of the value of $19,-385.12, against the protest of said assignee, and converted the said property to his own use, to the damage of the said assigned estate and the plaintiff in the above amount

The answer put in issue the allegations of the complaint, and by appropriate averments-justified the acts and things done by the defendant as being in the line of his duty as sheriff.

The evidence adduced on the trial failed to support the allegations of the complaint respecting the wrongful taking of any goods from the possession of the assignee by the defendant, and its admission was objected to by defendant’s counsel on the ground that it was not material or relevant to the issue. The objection was not sustained, and from the testimony resulting it appears that prior to the exechtion of the assignment the defendant as sheriff levied upon and took possession of certain goods belonging to Kaughran & Barrett under two executions aggregating about forty thousand dollars, and that a subsequent sale of part of the goods under such process resulted in a surplus of $10,804.44. While the sheriff was in possession of the property levied on, and subsequent to the assignment and the assignee’s acceptance of the trust, the defendant received other executions aggregating about nineteen thousand dollars, and he asserted to the assignee the right to sell a sufficient quantity of the goods remaining in the store to secure the balance required to satisfy such executions. Without conceding the sheriff’s position to be correct, the assignee believing, as it is alleged, that the assigned estate would be benefited by a sale conducted by him rather than the sheriff, suggested a plan which he intended should permit him to take possession of the goods and sell them and at the same time preserve for the benefit of the assigned estate such sum of about nineteen thousand dollars provided the possession of the sheriff should prove to be without support in law. The assignee’s proposals ripened into an arrangement by which the sheriff was permitted to retain the surplus, which exceeded ten thousand dollars, and in addition the assignee paid over to him about nine thousand dollars, making total moneys then in the hands of the sheriff equal to the amount due on the executions which he had received sub-' sequent to the assignment but under which he had levied on goods forming a part of the assigned estate.

The assignee protested against the defendant’s claim of right to sell the goods upon which he had levied, and insisted in doing -that which he did he did not intend to relinquish the claim that the estate was entitled to the possession of the goods then in the store; that the money was intended by him as a substitute for the goods upon whitih the sheriff had levied, and was a deposit made for the purpose of procuring a release from the levy. Immediately thereafter the sheriff released the goods from the levy .-¡and the assignee took possession, since which time the defendant has in no way interfered with any portion of the assigned estate. It is apparent, therefore, that the allegations of conversion of goods had no support in evidence, for those which the defendant disposed of and caused to be removed were rightfully sold under executions issued and levied before the assignment, and -the legality of his action in that respect is not controverted.

But the plaintiff insists that there was a conversion of the surplus by the defendant; that his complaint was broad enough to embrace it, and, therefore, the dismissal of his complaint was error.

"While the surplus came properly and lawfully into the possession of the sheriff pursuant to the sale under executions rightfully levied, still after their satisfaction he had no right to retain it,' as it formed a part of the assigned estate, and had the assignee demanded it, its continued retention by the defendant would have been wrongful, and would have supported an action of conversion. But the arrangement between the assignee and the sheriff operated to do away with that cause of action, and to substitute in its stead one for money had and received. This conclusion is required by the testimony of the counsel for the assignee, who conducted for him the negotiations with the sheriff which resulted in his retention of the surplus, and a further payment to him of about nine thousand dollars by the assignee to induce a release of the levy on. a portion of the assigned estate. He testified: “ My recollection is not very distinct about what did occur. ' All I know was there were certain attachments or executions that had been issued, and' that the sheriff was in possession under those claiming adversely to the assignee ; and the assignee under my advice ascertained the amount of these liens or claims against the property and after ascertaining those we went to the sheriff’s-office with a view of seeing if some arrangement could be made by which he would allow the assignee to sell and then have these liens paid out of the proceeds. And as the result of that, without desiring in any way to determine the question of the validity of the liens, we entered into an arrangement by which a stipulation was drawn; the fund or moneys were to be taken and put in the place of the property. * * * My recollection is that the sheriff said : Here is so much money, whether he took it in the shape of a check or whether there was money passed I can’t state, but he said, I have got that amount of money belonging to the assignee. The assignee went in and made a demand for it, and he said, I have got that surplus over and above these judgments; the Claflin and Kaughran judgments. The sheriff then said he would; he said : I will pay that over to you. Then we went into the arrangement of what we were going to do by reason of the levies he had made on the Broadway store and he stated that unless some arrangement was made by. the assignee to release those levies there by a deposit of money in lieu of the property, that he was going to sell out the property of the Broadway store. * *. * My recollection about it is, we went there and asserted that the sheriff hadn’t any right to keep the money, and he said on his part that he had this money in his'hands, and he said: I have got a levy upon the Broadway store. It may be that the proceeds there will be sufficient to satisfy these attachments and ' executions; if so, the surplus will belong to the assignee. At that time the sheriff was in possession, and the assignee was of opinion that it was-for the interest of the estate to get it out of the hands of the sheriff, and we tried to get the sheriff to release the property, and he wouldn’t do it without getting the money, .and we entered into this arrangement. * * * I will not say as a matter of fact that he asserted a right against the surplus of this money that he had in his hands; he never positively refused in the sense of saying he would not pay it over. He said: This money is here, and if I make the executions good out of the property, I have got to recognize your demand.

“ Q. That is, he said if you took that money he would have to take more property ? A. Yes.
“ Q. And so far as simply the question of holding that money or getting more property, you told him to hold the money and not take more property ? A. I told him we would enter into this arrangement.”

It is quite apparent from this evidence that the sheriff was in possession of the goods belonging to the assigned estate under certain executions, and threatening to make the amount due thereon out of such property; that to prevent a sale by him and secure for the assignee immediate and undisputed possession the counsel for the assignee proposed the arrangement which was finally entered into. In order to carry it out the assignee borrowed the sum of $9,000 and paid it over to-the sheriff, who was further permitted to retain the surplus to make up the balance which he required as a condition precedent to a surrender of possession of the goods on which he had levied. Had the surplus not been taken into account in making up the $19,000, the assignee would have been obliged to raise and pay over an equal amount in order to accomplish the purpose which he had in view. It seems to be clear therefore that whatever may have been the rights of the assignee against the sheriff as to the surplus prior to the agreement, that it was the intention of the parties and the legal effect of their action to treat the surplus and the $9,000 borrowed by the assignee as paid over to the sheriff to effect a common • purpose, to. wit, a surrender of possession to the assignee of goods out of which the sheriff threatened to make the amount due on certain executions. The sheriff had no right to demand this money nor to retain possession of the goods under the levy made after the assignment, and the assignee by an appropriate action might have obtained an adjudication setting aside the levy and requiring the sheriff to surrender possession of the goods to him, but believing the course adopted to be for the best interest of the estate, he paid the money under protest and in order to obtain possession. The payment thus made was not voluntary, but compulsory, and the law implies a promise to re-pay; the remedy being an action as for money had and received; Clinton v. Strong, 9 Johns., 370; Harmony v. Bingham, 12 N. Y., 99; Briggs v. Boyd, 56 id., 289, 293; Bowns v. May, 120 id. 357, 360; 31 St. Rep., 700.

The cause of action alleged in the complaint, however, was not • for the recovery of money involuntarily paid to the defendant, but for the wrongful taking by the defendant from the assignee O’Brien of “ dry goods, fixtures, attachments and personal property,” and the testimony presented did not tend to establish it. As the evidence adduced, pointing to a different cause of action, was-seasonably objected to, it was not error for the court to dismiss the complaint. Southwick v. First National Bank, 84 N. Y., 420.

At the close of the plaintiff’s case, his counsel asked the court to so amend the complaint as to conform to the facts proved. The request was denied. As appears from the observations already made, the effect of granting the motion would have permitted a recovery upon an entirely different cause of action from that set forth in the complaint, and that may not ordinarily be done on the trial against the objection of the other party. Barnes v. Quigley, 59 N. Y., 265; McMichael v. Kilmer, 76 id., 36; Arnold v. Angell, 62 id., 508.

Subsequently, and after the court had decided to dismiss the complaint, defendant’s counsel asked to be permitted to withdraw a juror so as to permit a motion to be made at special term to amend the complaint This request was also denied. The disposition of such an application rests so largely in the discretion of a trial court that the manner of its exercise, after an affirmance by the general term, will not be reviewed here.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Potter, J., not voting.  