
    SUPREME COURT.
    Benjamin Snyder agt. Elias C. Davis.
    
      Third Department,
    
    
      May General Term, 1874.
    
      Exemption —property sold on execution.
    
    An execution issued upon the recovery of a judgment for the purchase-price of a cow, which is by law exempt from execution, may be levied on property of the defendant in the execution and sold, which would be exempt by law from execution, if the judgment had not been recovered for the purchase-money of exempt property.
    Miller, P. J., Bockes and Boardman, JJ.
    
    This cause was tried at the Montgomery county circuit on the 13th day of June, 1873, before justice James and a jury. After hearing proofs of the parties and the arguments of their counsel, a verdict was directed by the court in favor of the plaintiff for $130 damages, and the case reserved for the further consideration on defendant’s motion for a nonsuit; and such consideration having been had, the verdict directed was thereby ordered vacated, and judgment directed for the defendant, on the motion for nonsuit, with costs.
    The plaintiff appealed to the general term. The facts are fully stated in the opinion of the court.
    
      H. B. Cushney, attorney for plaintiff.
    
      Peter G. Webster, attorney for defendant.
   Bockes, J.

The question in this case arises under the exemption act of 1842, amended in 1859, and again in 1866 (Laws of 1852, chap. 157; 1859, chap. 134; 1866, chap. 782). The sale was made by defendant, as constable, under an execution against the plaintiff, issued on a judgment rendered for the purchase-money of a cow, which cow was exempt property under the provisions of the Revised Statutes of 1830. The property sold was a. horse, harness, wagon and sleigh. And it is conceded that such property was exempt under the act of 1842, and the amendments thereof, unless it comes within the provisions of the last clause, which reads as follows : “ Provided that such- exemption shall not extend to any execution issued on a demand for the purchase-money of such furniture, tools * * * or the articles now enumerated by law.” Row, the act of 1842 extended the exemption declared by the Revised Statutes to certain other property therein specified (to the property sold in this case), subject to the proviso above stated.

This proviso was that this act of 1842 should be ineffectual as to any execution issued on a judgment for the purchase-money of the property thereby exempted, or for the purchase-money of “ the articles now enumerated by law.” The cow, for .the purchase-money of which the judgment was recovered, was one of those articles (2 R. S., 367, § 22, sub. 4). Therefore, by force of the proviso, the act of 1842 was ineffectual as to the exemption here claimed.

The language of the proviso is specific and clear. It provides that such exemption shall not extend to any execution issued on a demand for the purchase-money of the articles now enumerated by law.” Those articles'were, “• all sheep to the number of ten, * * * one cow,, two swine” (et sub. 4, supra). Row, the property here sold was not exempt by the Revised Statutes of 1830, nor by the act of 1842, giving effect to its proviso, inasmuch as the execution on which the sale was had, “ issued on a demand for the purchase-money of an article then enumerated by law as exempt.” And in the absence of any law exempting the plaintiff’s property, it was liable to seizure and sale on execution issued on a judgment rendered against him.

This exposition of the exemption act of 1842 and its amendments has sanction also in Cole agt. Stevens (9 Barb., 676), where Selden, J., remarks that “The natural reading of the clause seems clearly to be that the exemption allowed by the section itself shall not be available against any execution issued to collect the purchase-money of any exempt property whatever” (See also 10 Barb., 91). I am of the opinion that the seizure and sale of the plaintiff’s property in this case was justified in law, and the nonsuit was, consequently, right. I am not unmindful of the decision in Hickox agt. Fay (36 Barb., 9), which is relied on by the appellant’s counsel, where it was held that an execution issued on a judgment recovered on a demand for the purchase-money of exempt property must follow the identical property sold, as if the party selling retained a specific lien thereon for the price.” But this decision was overruled, or rather was not followed, in Craft agt. Curtiss (25 How. Pr. R., 163), and has not been regarded as sound. The question here under consideration was not before the court in Smith agt. Slade (57 Barb., 637; see also, 14 How., 519, and 3 Denio, 52).

The nonsuit in this case* was right, and judgment should be affirmed, with costs.

Miller and Boardman, JJ., concur.  