
    Clarence J. Knapp, Resp’t, v. Thomas R. O’Neill, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    1. Execution—What exempt ebom levy and sale on execution—Code Civ. Pro., § 1391.
    On the trial of an action to recover the value of a horse owned by plaintiff, and claimed to be exempt, sold by defendant as sheriff upon a judgment and execution against the plaintiff, the plaintiff gave evidence tending to prove that he was a householder, having a family for which he provided, and that he owned and used in the prosecution of his business the horse in question, when defendant, in virtue of said execution, levied upon it and sold it. He also gave evidence tending to show the value of the horse to be $150 or less, and that he had not the personal property named in Code of Civil Procedure, section 1391, amounting with the horse to $250. Held, there was proof sufficient to warrant the jury in finding that the horse, was exempt within said section. That upon the question of fact its verdict was controlling.
    2. Same—“One horse” a “team.”
    “ One horse ’• is covered by and included in the word “ team.”
    8. Same—Burden of provino property exempt on plaintiff.
    The Durden of proof was upon the plaintiff in respect to the facts essential to carry the case within the protecting provisions of the statute.
    
      4. Same—How property must be used to be exempt.
    If the plaintiff used the horse in any branch of business, such as collecting accounts, carrying passengers or letting the horse for hire, which the plaintiff was carrying on to gain support for himself and family, in whole or in part, the horse was exempt under the statute.
    6. Same—Judgment debtor need not change business.
    The plaintiff was entitled to select his own business to support in part, or in whole his family. If it was possible to support his family in some other way that fact would not take away the exemption of the horse.
    Appeal from a judgment on a verdict taken at the Onondaga circuit by Williams, J., and from an order refusing a new trial on the minutes.
    Action to recover the value of a horse owned by plaintiff and claimed to be exempt, sold by defendant as sheriff upon a judgment and execution against the plaintiff.
    
      Homer Weston, for app’lt; William M. Ross, for resp’t.
   Hardin, P. J.

Plaintiff gave evidence tending to prove that he was a householder, having a family for which he provided, and that he owned and used in the prosecution of his business the horse in question when the defendant, in virtue of a judgment and execution levied upon it, and sold it.

He also gave evidence tending to show the value of the-horse to be $150, or less, and that he had not other personal property named in section 1391, amounting, with the horse, to $250. By such proof his case was made out, and it-must be assumed the jury found such facts. Hoyt v. Van Alstyne, 15 Barb., 568.

The case just cited was approved of in Wilcox v. Hawley (31 N. Y., 653), in which case Davis, J., says: “The word ‘necessary,’ as used in the statutes, applies to the household furniture, and qualifies the extent of that furniture exempted.”

The language found in the act of 1842, as amended by chapter 134 of the Laws of 1859, is not exactly like that found in section 1391 of the Code of Civil Procedure. In the act of 1859, the language is, viz : “In addition to the articles now exempt by law from levy and sale under execution, there shall be exempted from such sale necessary household furniture, and working tools and team owned by any person being a householder, or having a family for which he provides. ” * * *

In section 1391, the language is, viz.: “In addition to-the exemption allowed by the last section necessary household furniture, working tools and team, * * are exempt-from levy and sale by virtue of an execution when owned by a person being a householder, or having a family for which he provides, except, etc.

There was proof sufficient to warrant the jury in finding that the horse was exempt within the language of §1391, and its verdict was upon the questions of fact controlling-the case. Wilson v. Ellis, 1 Denio, 462; Sammis v. Smith, 1 T. and C., 444.

It has been settled that “one horse” is covered by and included in the word “team.” Harthouse v. Rikers, 1 Duer., 606. Approved in Wilcox v. Hawley, supra; Dains v. Prosser, 32 Barb., 290; Brown v. Davis, 9 Hun, 44; Lockwood v. Younglove, 27 Barb., 505.

We think the trial judge was correct in his instruction to-the jury, that the burden of proof was upon the plaintiff, in respect to the facts essential to carry the case within the-protecting provisions of the statute.

We may properly assume that the jury found that the horse “was necessary to the support of his family, or in the prosecution of his accustomed business.” Wilcox v. Hawley, supra.

We think the trial judge put the case to the jury in a. more favorable aspect for the defendant than he was entitled, and that his exceptions to the charge of the judge and his refusals to charge do not point out any error.

If the plaintiff used the horse in any branch of business, such as collecting accounts, carrying passengers or letting the horse for hire, which the plaintiff was carrying on to gain support for himself and family, in whole or in 'part, the horse was exempt within the humane spirit of the statute, which has always received a liberal construction in favor of the parties protected by it. The exemption in the statute was not made to depend on the pecuniary ability of the debtor; it is a benign and remedial statute, enacted for the benefit of families, from the highest motives of public policy. * * .” Smith v. Slade, 57 Barb., 641.

The plaintiff was entitled to select his own business to support in part or in whole his family. It was not error to refuse to charge that if it was possible to support his family in some other way, that then the horse was not exempt.”

In Cogsdill v. Brown (5 Hun, 341), it was said the owner had the right to retain the property and find use for it.”

We think no error was committed in excluding the particulars of the transactions between plaintiff and his aunt Miss Schuyler. The evidence did not seem to be relevant to or important to any issue arising upon the trial.

The foregoing views lead to an affirmance of the order-denying motion for a new trial, and of the judgment on the verdict.

Judgment and order affirmed, with costs.

Follett J., and Martin, J., concur.  