
    ISRAEL G. ATWOOD, Plaintiff and Appellant, v. MARGARET J. LYNCH, Administrator, &c., of James Lynch, Deceased, Defendant and Respondent.
    I. Sheriff.—Trespass.—Execution.—Levy.
    1. Trespass, action for, when it will not lie against the sheriff.
    
    a.' Where the sheriff under an execution against A. levies on property of B., and thereafter an execution against both A. and B. comes to his hands, under which he makes no actual levy, and thereafter he sells under the execution against A., he cannot beheld liable in an action of trespass brought by B. where the complaint assigns the trespass as having occurred on the day of sale.
    2. Application of proceeds, wrongful.
    
    Semble.—In such case the execution creditors of A. and B. might have an action against the sheriff for a false return, if he paid over the proceeds of the sale to the execution creditor of A.; and, perhaps, B. on showing special damage might have an action on the case against the sheriff.
    H. Complaint.—Recovery under, for a Cause of Action not Intended to be Pleaded, when allowed, when not.
    1. Allowed only when, in addition to the facts which alone were necessary to constitute the intended cause of action, the complaint states other facts, which either by themselves or in connection with the facts necessary to the intended cause of action, constitute another cause of action.
    See Ladd v. Askell, post.
    
    HI. Direction to jury to find a verdict.—Trial.—Appeal.
    1. No appeal will lie from the mere direction.
    Before Freedman, Curtis, and Speir, JJ.
    
      Decided January 31, 1874.
    Exceptions ordered to be heard at general term, and appeal from a direction to the jury to find a verdict.
    The action was brought against the late Sheriff Lynch for> taking and converting goods claimed by the plaintiff as owner, and upon the death of said sheriff it was continued against his administratrix.
    Upon the trial the following facts appeared :
    On May 19, 1864, Sheriff Lynch levied upon' the property in question under an attachment issued against the property-of one Don M. M. Turner in favor of Albert Read, and put a keeper in charge.
    On June 7, 1864, the plaintiff confessed judgment against himself and said Don M. M. Turner jointly, in favor of Charles White et al., for one thousand two hundred and twenty-eight dollars and twenty-eight cents, and on the same day execution was issued thereon to the sheriff, plaintiff intending to have the sold under this execution.
    On June 9, 1864, judgment was rendered in the action wherein the attachment against said Turner had issued, in favor of the plaintiff therein, and on the same day execution was issued thereon to the sheriff, Who thereupon endorsed upon said attachment “Attachment superseded by judgment and execution thereon as issued.”
    On June 34 the sheriff sold the property in question at public auction.
    It was claimed by the plaintiff that this sale was made under the execution against Turner alone, and that some days subsequently the sheriff sold the interest of both the plaintiff and Turner in the remaining property under the execution against them jointly.
    Upon this state of facts the judge at nisi prius ordered a verdict for the defendant, exceptions to be heard by the general term in the first instance.
    Plaintiff also served a notice of appeal from the ruling of the judge directing a verdict for defendant.
    
      Henry Stanton, attorney, and of counsel for appellant, urged among other things :—I.
    A constructive levy cannot be based on a prior void levy, but must be based on a prior actual and valid levy, and that on a writ against the same person (Crocker on Sheriffs, §§ 434, 440, 454; Camp v. Chamberlain, 5 Den. 198 ; Sherry v. Schuyler, 2 Hill, 304; Bank of Lansingburgh v. Crary, 1 Barb. 542). When the sheriff levied under the attachment he had no writs of any kind against Atwood. Hence the levy of the attachment was absolutely void, and it could not be the basis of a construcstruotive levy of the execution against Atwood. The sheriff’s indorsing on the attachment on June 9, “Attachment superseded by judgment and execution thereon as issued,” was no levy of the execution, unless the levy under the attachment was valid. The levy under the attachment was void. Hence this indorsement could form no basis for a constructive levy of the execution against Atwood.
    II. As the sheriff had, at the time of the sale, no actual or constructive levy on plaintiff’s property, his selling it was trespass (Ackworth v. Keuch, 1 Doug. 40; Van Antwerp v. Newman, 2 Cow. 543; Bliss v. Ball, 9 Johns. 132; Hotchkiss v. McVicker, 12 Id. 403; Neff v. Thompson, 8 Barb. 213; Crocker on Sheriffs, §§ 440, 846).
    III. Admitting the execution against Atwood was constructively levied, the sheriff waived any rights he may have had by virtue of such constructive levy, and is bound to account for the goods, (a.) The sheriff abandoned any constructive levy he may have had when, on June 24, he refused to sell under the execution against Atwood, and sold under the one against Turner, (b.) If he had a constructive levy under the execution against Atwood, and' it gave him such a lien on the property as authorized him to sell, he could only perfect his lien by selling under that execution, (c.) And for selling by virtue of the title vested in him under the levy of the Turner execution, independent 
      
      of his lien under the constructive levy, he can be called upon to account for. the goods (Boardman v. Sill, 1 Campb. 40, note ; Holbrook v. Wight, 24 Wend. 169 ; Everitt v. Saltus, 15 Id. 474).
    IY. If the law allows the sheriff to sell without an actual or constructive levy, it does not follow that it allows him to refuse to sell under an execution against the owner of the property, and actually sell under one against a stranger.
    Brown, Hall <fc Yanderpoel, attorneys, and A. J. Yanderpoel, of counsel for respondent, urged:—I.
    At the time of the alleged trespass (which was stated in the complaint to be the day of the auction sale) the sheriff held the property in question and held an-execution against the plaintiff. This fact legally barred the plaintiff from maintaining his action of trespass, and the justice below was correct in ordering a verdict for the defendant. (1.) “At the common law no levy upon personal property was necessary ; the goods were bound from the award or teste of the execution, and the sheriff could take the goods out of the hands of even a bona fide purchaser; As a judgment entered during a term had relation back to the first day of the term, the execution could be tested as of the first day of the term, so it might well happen that the title of the sheriff wras superior to that of a bona fide purchaser, even though he had become such purchaser before the entry of judgment.” Opinion of Davies, J., in Bond v. Willett, 1 Keyes, 384. To remedy the evils which this relation of th,e writ occasioned, our Revised Statutes contain the following provisions (3 Rev. Stat. 5 ed. 644): § 13. “ Whenever any execution shall be issued against the property of any person, his goods and chattels, situated within the jurisdiction of the officer to whom such execution shall be delivered, shall be bound only from the time of the delivery of the same to be executed.” §17. “The title of any purchaser in good faith of any goods or chattels acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such an execution had been delivered to an officer to be executed before such purchase was made.” (2.) The necessity for these provisions in the statute, and the extent of the common law rule, are fully set forth in Roth v. Wells, 29 N. Y. 489 ; Bond v. Willett, 1 Keyes, 384 ; see also Ray v. Birdseye, 5 Den. 619, 625 ; Slade v. Van Vechten, 11 Paige Ch. 21 ; Becker v. Becker, 47 Barb. 497; Lambert v. Paulding, 18 Johns. 311 ; Beals v. Allen, Id. 363. In the case at bar the sheriff had levied upon the property under the execution against the plaintiff and Turner (Peck v. Tiffany, 2 N. Y. [2 Comst.] 451).
    II. There is no evidence in the case showing how the proceeds of this sale were applied, whether towards the satisfaction of the judgment against Atwood and Turner jointly, or towards that against Turner alone. The plaintiff is not shown to have suffered any damage. The priority of executions is determined by statute (3 Rev. Stat. 645, §§ 14, 15), and it makes no difference whether the sale is under the first or a subsequent execution (Camp v. Chamberlain, 5 Den. 198 ; Peck v. Tiffany, supra).
    
    III. The plaintiff cannot recover in his present form of action, even though it be admitted that Turner had no interest whatever in the property, and that the money realized upon the sale was all paid upon the execution against him. (1.) The plaintiff’s cause of action in that event, if any, would be that the sheriff had misapplied moneys which had come into his hands rightfully. If the sheriff did this, an action for false return might be brought against him by the plaintiffs in the other execution; or, possibly, the present plaintiff might have brought an action setting forth all the facts, and specially pleading the damage sustained by him. Such a cause of action, however, would be totally different from the one set forth in the complaint, which is the ordinary one of trespass. The trial proceeded throughout upon the theory that this was an action of trespass, and that the sheriff had no right to enter upon or to sell the property—which he unquestionably had (see cases cited under first point, and also Richards v. Allen, 3 E. D. Smith, 399). (2.) Bat the facts proved are wholly insufficient to sustain' an action of the character suggested, even if properly pleaded. The plaintiff did not show that he had sustained any damage. There is no proof that he ,was ever called upon to pay or had paid a dollar on account of the judgment against himself and Turner, and, as said before, there is no proof as to the disposition of the proceeds of the sale*.
    IY. The exceptions are not well taken, and judgment should be entered for the defendant in accordance with the verdict.
   By the Court.—Freedman, J.

The court below having ordered that plaintiff’s exceptions be heard at general term in the first instance, and that judgment be suspended in the mean time, no appeal lies from the mere’ verbal direction of the verdict. The whole case is removed to the general term for judgment under section 265 of the Code. If the exceptions are ..sus- • tained, a new trial must be ordered ; if overruled, the general term renders final judgment (Mason v. Breslin, 2 Sweeny, 386). ,

The verdict was properly directed for the defendant, because the complaint alleged nothing beyond a naked trespass on June 24, 1864, and the evidence showed, that at that time the sheriff not only held the goods in question, but that he also held an execution against the plaintiff, and because there was no evidence showing the final application of the proceeds of the sale. The levy under the attachment was a violation of plaintiff ’s rights at the time, in case Turner had no interest whatever in the property levied apon ; but the moment the execution issued upon the judgment of Charles White and others against Turner and the plaintiff was delivered to the. sheriff, "namely, June 7, 1864, the said property was bound for the amount of that execution without a levy (3 Rev. Stat. [5 ed.] p. 644, § 13). An actual levy is necessary only against a purchaser in good faith and without fiotice of the execution (Id. § 17). At common law the writ of fieri facias bound the goods of the debtor from the time when the writ was tested, which often preceded by a whole vacation the time of its delivery to the sheriff. This effect given to the writ by relation, often operated very unjustly, especially as against bona fide purchasers ; and to prevent that evil, the rule was changed by statute (Roth v. Wells, 29 N. Y. 489; Bond v. Willett, 1 Keyes, 384, per Davies, J.). The priority of executions and the application of the moneys realized from sales are also regulated by the Revised Statutes, and it makes no difference whether a sale takes place under the first or under a junior execution (Peck v. Tiffany, 2 N. Y. 451). But the executions must have been issued against the same defendant (3 Bev. Stat. [5 ed.] §§ 14, 15). Although, therefore, in case Turner had no interest whatever in the property in question, and a wrong application of the proceeds was finally made by the sheriff, Charles White and otjiers as execution creditors might have an action against the sheriff for a false return, and although upon the same facts, but coupled with proof of special damage, perhaps even the plaintiff might maintain an action on the case, yet under the complaint in this action which alleged nothing, beyond a naked trespass, plaintiff could not proceed as if his action had been on the case or for a false return. It is only where the complaint sets forth facts sufficient to constitute a different action from the one intended to be pleaded, in addition to those which had to be pleaded to make out the latter, that the plaintiff, upon failure to prove the latter, may sometimes be permitted to recover upon • the former (Conaughty v. Nichols, 42 N. Y. 83). But even if the complaint in the case at bar was broad enough, which it is not, to authorize a recovery upon any such theory, in case of failure to prove prespass, the plaintiff could recover only upon proof of special damage. No such proof was given or offered.

The appeal from the direction of the verdict should be dismissed, with ten dollars costs ; plaintiff’s exceptions should be overruled and judgment absolute rendered for the defendant upon the verdict, with costs.

Curtis and Speir, JJ., concurred.  