
    Lillian B. Denton, Appellant, v. William Carroll, Respondent.
    Tit® collector — levying on furniture in the room, of a hoarder—excessive sale.— ■credibility of a party or interested witness—1 S.,8. 397, § 2; Laws 1864, chap. 555, §§ 81, 84; 1890, chap. 526, § 1; 1894, chap. 556, §§ 78, 81.
    In an action brought to recover damages for the conversion of certain property, it appeared that- the plaintiff owned an ingrain carpet, a rag carpet and a washstand upon which the defendant, a collector of school taxes, levied, and which he sold at public auction; selling first the ingrain carpet for seven dollars, then the rag carpet for one dollar and fifty cents, and finally the washstand for sixty-five cents, for a tax assessed against Olive Bigelow, who boarded with the plaintiff, and occupied a sleeping room in the plaintiff’s house. The tax and the.defendant’s fees amounted to three dollars and thirty-one cents.
    
      Held: that the possession which a boarder has of the furniture in a room which he occupies does not authorize a tax collector to seize it' for a tax assessed against the boarder; ■
    That, even assuming that Olive Bigelow was in possession of the furniture, the defendant was liable for selling the rest of the furniture, after he had sold the ingrain carpet for a sum which was nearly double the amount of the tax and the expenses of the sale;
    That a jury is not authorized to disbelieve the uñcontradicted evidence óf a patty, in nowise impeached and the truth of which is highly probable, simply ■ because the person is a party to or has an interest in the action.
    Appeal by the plaintiff, Lillian B. Denton, from a judgment of the County Court of the county of Wyoming in favor of'the defendant, entered in the office of the clerk of the county of Wyoming on the 7th day of Hay, 1895, affirming a judgment rendered by a justice of the peace. .
    
      Eugene M. Bartlett, for the appellant.
    
      G. S. Van Gorder, for the respondent.
   Follett, J.:

August 2, 1894, this action was begun in a Justice’s Court and upon the trial a verdict of no cause of action was rendered. R is alleged in the complaint that the plaintiff was the owner of an .ingrain carpet; .a rag carpet and a washstand, which the defendant,. July 23, 1894, wrongfully took from the plaintiff’s possession and sold July 30, 1894. The defendant in his answer denies all of the allegations in the complaint, and alleges that he was the collector of taxes in school district No. 4 in the town of Genesee Falls, and that he levied upon and sold the property described in the complaint by virtue of a tax warrant issued to him for the collection of a tax duly assessed against Olive Bigelow, who was the owner of or in the possession of such property. It is conceded that the defendant was the collector of school district No. 4; that in April, 1894, he received a tax warrant commanding him to collect of Olive Bigelow a tax of two dollars and ninety-six cents, and that by virtue of the warrant he took, July 23, 1894, from the plaintiff’s house, against her protest, the articles described in the complaint, and July 30, 1894, sold them at public auction. He sold, first, the ingrain carpet for seven dollars; second, the rag carpet for one dollar and fifty cents, and, third, the washstand for 'sixtv-five cents. The tax and the defendant’s fees amounted to three dollars and thirty-one cents'. He was asked on the trial why he sold the rag carpet and washstand after having sold the ingrain carpet for more than sufficient to satisfy his claim. He answered: “ I thought if aman advertised property for sale he was obliged to sell it all.”

After satisfying the tax and his fees there was left in his hands five dollars and eighty-four cents, which he told the persons at the sale would he left with Mr. Beardslee, and it was so left with him for a time, but was afterwards withdrawn and deposited with the supervisor of the town of Genesee Falls.

The defendant attempted to justify his seizure and sale of the property on two grounds : (1) That Olive Bigelow was the owner of it; (2) that she was in the possession of it within the meaning of section 2, 1 Revised Statutes, 391, of which the following is a copy:

“ § 2. In case any person shall refuse or neglect to pay the tax imposed on him, the collector shall levy the same by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, wheresoever the same may be found, within the district of the collector; and no claim of property to be made thereto by any other person, shall be available to prevent a sale.”

It is conceded that the property seized and sold was part of the •furniture of a house owned and "occupied by the plaintiff and her husband, and was taken from rooms of which the plaintiff was in actual control when- it was seized. ' The plaintiff testified that she owned the property, and that, though Mrs. Bigelow occupied a sleeping room in the house and hoarded in the family, the rooms from which the furniture was taken had never been used or controlled by Mrs. Bigelow. To overthrow this positive testimony and to justify his seizure, the defendant testified that in May, 1894, he saw Mrs. Bigelow in the parlor. A former servant of the plaintiff,, called by the defendant, testified : “Was employed there (in plaintiff’s house) as a domestic years ago. Mrs. Bigelow occupied the north part of the house then.” This witness did not testify that Mrs. Bigelow ever occupied the parlor and bedroom from which the goods were taken, nor does she describe the rooms in' the north part which were occupied by. her. Another witness testified that he had seen Mrs. Bigelow at the Denton house, in the rooms on the north side of the house/’ but he does ■ not specify the rooms, nor doe's he testify when and under what circumstances he saw her in rooms on the north side of the house. This evidence*, given by these three witnesses, is absolutely the only testimony given in behalf of tiie defendant tó establish the fact that Olive Bigelow was the owner of, or ever was in possession of, the goods taken and sold.

"Upon this evidence the jury found for the defendant, and it is' now urged that the verdict should be sustained on the ground that the only evidence of the plaintiff’s ownership and possession Was given by her, and that the jury had the right to disbelieve it. Her testimony is not the only evidence of her title and possession, for every witness who was sworn in behalf of the defendant testified that these articles of furniture were in the plaintiff’s dwelling, and were there devoted to the uses for which they were designed. The defendant established the plaintiff’s actual possession, from which fact, unexplained, title may be inferred.

It has been often held that the credibility of the uncontradicted testimony of a party is a question for the- jury. So is the credibility of every witness, interested or disinterested, but a jury is not at liberty to disregard the evidence of any witness who is in nowise impeached, and whose testimony is such that its truth is highly probable. (Elwood v. The Western Union Tel. Co., 45 N. Y. 549; Cunningham v. Gans, 79 Hun, 434.) In some of the cases1 it is said that a jury is at liberty to disregard the testimony of a party to the action, or the testimony of an interested witness. This rule, expressed in this absolute form, is a survival of the theory of the common law, that persons interested in the event of an action, whether parties or not, were so likely to commit perjury that they could not be sworn as witnesses. In 1848 persons interested in the result of actions, and in 1857 parties to actions, were, by the Code of this State, authorized to testify in such actions. The courts regarded this change with great disfavor, and the rule that the undisputed evidence of a party to an action., or of a person interested therein, might be disbelieved by a jury, was often charged, and is declared in several reported cases without qualification and without much, regard to whether there were, or were not, facts or circumstances which tended to discredit the witness. But when time and experience demonstrated the wisdom of the change (which had been made in England -some years earlier, chap. 85, 6 & 7 Viet.; chap. 99, 14 & 15 Vict.), the rule began to be qualified and the tendency of the later cases seems to be that a jury is not authorized to disbelieve the uncontladicted evidence of a party, or of an interested witness, simply because he is a party or is interested therein. The rule, as first laid down, lias been stated in some recent decisions, but an examination of the cases shows that there was, in those cases, more than the -mere fact that the witness was a party or interested ; there were facts and circumstances surrounding the cases which authorized the inference that the witness was or might be unreliable. The true rule is declared in Kelly v. Burroughs (102 N. Y. 95), where it is held : “ The mere fact that the plaintiff, who testified to important particulars, was interested, was unimportant, in view of the fact that there was no conflict in the evidence, or any thing or circumstance from which an inference against the fact testified to by him could be drawn. The cases cited by the appellant lack this element, while Lomer v. Meeker (25 N. Y. 361) sustains the ruling of the trial court.”

In that case a verdict was directed for the plaintiff upon his uncorroborated evidence, though the defendant asked to have the testimony submitted to the jury.

Every circumstance in this case tends not to discredit, but to corroborate, the testimony of the plaintiff. She owned and was in possession of the dwelling. • The az-ticles seized were a part of its fnmi4 ture, and she had' actual and undisputed possession of' the rooms and . of the articles which were taken, "and, when taken, she was exercising dominion over them and over the rooms in which they were, and she'then asserted her title and possession. It was shown' that the tax debtor had been seen two or three times in the parlor, from' the floor of which the ingrain carpet: was taken, and she undoubtedly liad'been in that room, many times, but this fact did not establish her title to or possession of that carpet. It was not shown that the tax debtor had ever used the rag'carpet or the wasln stand,, or that she had ever ."seen them, though it may be that she' had seen and" used them many times. The circumstances shown , were insufficient to establish title or possession in the tax debtor, or to authorize the jury to discredit' the plaintiff’s uncontradicted testb mony that she was the o'wnér and 'in possession of the property.

The position that such possession as a boarder in :a house or hotel has of the furniture in the room occupied by him, authorizes a cob lector to seize it for a-tax assessed against him, cannot be supported, (Lake Shore & Michigan Southern Ry. Co. v. Roach, 80 N. Y. 339; Hersee v. Porter, 100 id. 403; Stockwell v. Veitch, 38 Barb. 650; S. C., 15 Abb. Pr. 412.) '■

But if it be assumed that the goods were liable to. be taken for the taxes assessed against Olive Bigelow, on the theory -that she was in possession,- the defendant is liable to this plaintiff for making an' excessive sale. • Under the evidence of the defendant the possess 'sibil'and title of the plaintiff were" sufficient to authorize the piainitiff to maintain an action against'a person converting the goods or any part Of them. -Collectors of school districts are commanded to enforce their warrants in the saíne manner that collectors of. town and county taxes enforce warrants issued by boards of supervisors (§ 78, chap. 556, Laws of 1894); and'in case they levy and sell, they may- charge five per cent on the amount collected and traveling fees at the rate of ten cents per mile, to be computed from the school house in tiié district. (§ 81, chap. 556, Laws of 1894.) . This chapiter did riot take effect "until" Juñe 30, 1894 (after this warrant was issued but before it was enforced). However; the powers and fees -of collectors'were the same under the statutes in existence in April, May and June, 1694. (§ 81, chap. 555, Laws of 1864; § 84, id., as amended by § 1 of chap. 526 of the Laws of 1890.) Officers when proceeding under executions or tax warrants are generally liable for excessive levies, and are always liable for excessive sales. "When several chattels are seized and enough have been sold to satisfy the demand, the sale of the remainder is a trespass and the officer becomes liable. (Cone v. Forest, 126 Mass. 97; Cooley Tax. [2d ed.] 496, 802; 2 Desty Tax. 868; Bur. Tax. 260, § 106; Freem. Ex. § 302.) ■'

In the case cited, the collector of a school district tax levied upon nine cows, sold seven for a sum sufficient to satisfy the tax and all charges, and then sold the other two cows. It was held that he was guilty of converting the two cows last sold and liable for their value. This rule is elementary, is as old as the Six Carpenters case, and is supported by many decisions cited in the text books above cited.

The defendant had no right, after selling the first article for more than twice enough to pay the tax and his charges, to sell the other articles.

The judgment of the County Court and the judgment of the Justice’s Court should be reversed, with costs. ...

All concurred; Ward, J., concurred in result upon the last ground stated in the opinion.

Judgment of the County Court of Wyoming county and the judgment of the Justice’s Court reversed, with costs.  