
    Pool v. Ellison et al.
    
    
      (Supreme Court, General Term, First Department.
    
    February 14, 1890.)
    1. Sheriffs—Actions—Substitution of Indemnitors.
    In an action to recover attached goods, where the sheriff’s indemnitors are substituted in his place as defendants, and directed to answer “the complaint herein, ” the rules governing the cases of interpleader do not apply, and no amendment of the complaint is required; it being only necessary to prove the cause of action against the sheriff.
    2. Same—Liability of Attaching Creditor.
    Where the record shows that the indemnity had been given to the sheriff for the purpose of making the levy complained of, the presumption is that it was given at the request of the attaching creditors, and that they made themselves parties to the trespass, and liable for the damages arising therefrom.
    3. Assignment for Benefit of Creditors—Validity.
    Representations, by a member of a firm, in reference to its indebtedness, will not invalidate an assignment subsequently made for the benefit of its creditors simply because it recognized debts which at that time it was stated did not exist; such representations having no connection whatever with the assignment.
    4. Same—Land in Another State.
    In an action involving the validity of such assignment, evidence that, subsequent to the execution thereof, certain of the firm’s real estate in New Jersey, not mentioned in the schedules, was transferred to other parties, is improperly excluded, as, in the absence of any proof in respect to the statutes of New Jersey, the assignment carried title to real estate in that state, as well as to property in New York.
    Appeal from circuit court, New York county.
    Action by Edgar Pool, as assignee, etc., of Henry C. Nichols and Cora I. Nichols, against Rodman B. Ellison, William P. Ellison, Carl Vietor, and Thomas H. Cullen, for the value of goods seized by the sheriff, under an attachment and execution in favor of the defendants Ellison, against property of Henry C. Nichols & Co., shortly after the latter firm had made a general assignment to plaintiff. The sheriff was originally a party defendant. Verdict was rendered for plaintiff. Defendants appeal from the judgment entered thereon.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      E. P. Wilder, for appellants. Harwood R. Pool, (Thomas F. Wentworth, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought by the plaintiff, as assignee for the benefit of creditors, to recover the value of a stock of goods which came into his possession as such assignee, and were subsequently attached and sold by the sheriff, who was the original defendant in the action. It appears that the defendants Vietor and Cullen executed and delivered to the sheriff a bond of indemnity, and the attached goods were sold under execution, and the proceeds received by the defendants Ellison. At their request the sheriff’s indemnitors were substituted in his place as defendants, and directed to answer the complaint herein. The answer of the defendants was a general denial, and the affirmative defense that the assignment under which the plaintiff claimed title was fraudulent as against creditors. Upon the trial of the case at circuit before a jury, motions were made upon the part of the defendants to dismiss the complaint upon various grounds, and requests were made on both sides to direct a verdict, and the court directed a verdict in favor of the plaintiff; and from the judgment thereupon entered this appeal is taken.

Various points have been raised upon this appeal which it will be necessary to discuss briefly. It is urged that the complaint as against the defendants Vietor and Cullen, the indemnitors, should be dismissed on the ground that as to them it contained no allegations sufficient to constitute a cause of action. The rules governing the cases of interpleader seem to be relied upon by the counsel for the appellants to sustain this proposition. This action was originally brought against the sheriff, and the indemnitors made application to the court, under the statute, to take the place of the sheriff, and answer the cause of action alleged in the complaint; It does not appear that under those circumstances any amendment of the complaint was necessary, as they were defending in the place and stead of the sheriff, and answering the cause of action alleged against him, for which, if established against him, they (the indemnitors) had made themselves liable. The rules governing the cases of interpleader, therefore, do not seem to apply, as, in view of the manner in which the action was commenced, the plaintiff only had to establish his cause of action against the sheriff in order to be entitled to a judgment against the indemnitors because of the action which they had taken in intervening in the action against the sheriff. It was not necessary, therefore, to prove any cause of action as against the indemnitor. It was only necessary to prove the cause of action against the sheriff.

It is further urged that the complaint should have been dismissed, as against the defendant Ellison, on the ground that the evidence is insufficient to make out any cause of action. It is true that the mere fact that they received the proceeds of the sale, or a portion thereof, in no manner made them liable, nor that the execution issued against the defendants’ property contained a direction to levy and sell the samefor the purpose of satisfying the execution, was not sufficient to hold them as authorizing the trespass upon the part of the sheriff. The fact, however, that they indemnified the sheriff against alhcosts and damages which might result from such levy and sale, it seems to us, was sufficient to make them liable. It is true, it is claimed that there was no evidence going to show any authority upon the part of the Ellisons for the commission of this trespass. But where the record itself, in consequence of the action of the indemnitors, shows that an indemnity upon the part of the plaintiff had been given to the sheriff for the purpose of making this levy, the presumption necessarily arises that such indemnity was given at the request of the defendants Ellison, and that they, by the fact of the giving of such undertaking, made themselves parties to the trespass, and liable for the damages arising therefrom.

It is further urged that error was committed in regard to the rule of damages, and that there was no evidence upon which the jury could fix any definite amount upon which their verdict could be predicated, or that the damages were excessive. It would appear that the latter objection was well taken. The evidence offered upon the part of the plaintiff tending to prove value was exceedingly unsatisfactory, and the witnesses were not shown to be qualified to speak upon that point. There was evidence, however, what the amount was which this property brought when sold by the sheriff, and this was clearly evidence upon which the jury might predicate an estimate of value.

It is finally urged that error was committed in the exclusion of testimony in reference to the fraudulent character of the assignment under which the plaintiff claims. Most of the rulings of the court in respect to the exclusion of evidence which are criticised by the appellant were clearly correct. The representations that one of the members of the firm made at the time of the purchase of the goods in reference to the indebtedness of the firm, could not invalidate an assignment subsequently made simply because it recognized indebtednesses which at that time it was stated did not exist; such representations having no connection whatever with the assignment. A creditor cannot be deprived of the rights which the law and the statutes give him by any such indirect testimony as this. Fraud must be proved, and cannot be presumed, unless such facts are established by competent evidencé that no other inference but that of fraud can be drawn therefrom.

We think, however, that the learned court erred in excluding the testimony as to the Yew Jersey property; and it is clear that this error arose from the fact that the attention of the court was called to the case of Blaine v. Pool, 13 N. Y. St. Rep. 571, which was claimed upon the part of the plaintiff to settle all the questions raised in the case at bar in favor of the plaintiff; and the attention of the court was not called to the fact that there was a very decided difference in the proof, as it was presented in the case at bar, from that which had been proved in Blaine v. Pool, supra. In the absence of any proof in respect to the statutes of Yew Jersey, all the real estate, whether situate in Yew York or Yew Jersey, owned by the parties to the instrument, would pass to the assignee; and in the case of Blaine v. Pool it was held that it did not, simply because, upon proof of the statute of Yew Jersey, it appeared that such a conveyance in such an assignment was opposed to the policy of that state, which controlled the transfers of real estate situated therein. In the case at bar, no evidence was offered of the statute of Yew Jersey. It did not appear that the statute of Yew Jersey was in any way different from the statutes of Yew York, or that the common law had been altered by any statutory regulation in that state; and, as a result, as far as the proof in the ease at bar was concerned, the assignment should have carried the title to the real estate situate in Yew Jersey as well as the property situate in Yew York. Evidence was offered going to show that one of the parties to this assignment, in whom the title to this real estate in Yew Jersey stood, after the assignment conveyed it to other parties; and it might well be argued, if this evidence was before the court, that this was a fraudulent action upon the part of one of the assignors, in attempting to take out from the action of the assignment this property, which had been conveyed thereunder. Whether proof of this fact would have called upon the court to hold that the assignment for that reason was fraudulent and void, it is not necessary to discuss, because it might very well have been that if that proof had been in the case, and the same motions at the end of the case had been made as were made, the direction of the court, as it had been made, might have been upheld but it is impossible for us to say whether or not, with that proof before the court, it would have made the same disposition of the case which it did; such proof having been excluded. It is evident that the court was misled as to the purport of the case of Blaine v. Pool, supra, and the learned counsel for the respondent, judging from his points, does not yet seem to have realized the difference between that case and the one at bar, as the facts are now presented upon the record. We think, for the reasons given, that the judgment must be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.  