
    Mark J. King and others v. John Orser, Sheriff, &c., and John Wilson.
    Although before the Code the sheriff could uot be made liable, as a trespasser, for taking the goods described in a -writ of replevin, from the possession of a third person, claiming to be the owner, yet in the action which the Code has substituted for that of replevin, he can only take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant himself, or of his agent.
    The provisions of § 216 of the Code, requiring, that when the property taken by the sheriff is claimed by any other person than the defendant or his agent, such person shall make and serve upon the sheriff an affidavit, showing his title to the property, and his right to the possession, are only applicable when the property is taken by the sheriff in the proper discharge of his duty, from the possession of the defendant or of his agent.
    The sheriff, although not personally present when goods are wrongfully taken by a deputy, is yet liable as a trespasser for the acts of the deputy, and may therefore be joined with the deputy as a defendant in an action for the recovery of damages from the wrongful taking.
    The defendants in such an action, when the wrongful taking is proved, are not allowed to set up, as a defence, a paramount title in a stranger.
    The rule of damages is the market value of the property when wrongfully taken.
    Judgment for plaintiffs, with costs.
    (Before Oakley, Ch. J., Doer and Campbell, J.J.)
    March 12; - 31, 1855.
    
      The action was brought to recover damages for tbe wrongful and forcible taking by tbe defendants of certain goods and chattels particularly described in tbe complaint, and judgment was demanded for $3,000, witb interest from tbe 19th of March, 1853, tbe day on which the wrongful taking was laid.
    The answers of the defendants alleged that the defendant Orser, was sheriff of the city and county of New York, and the defendant Wilson, one of his deputies, and that the latter, as such deputy, had rightfully taken possession of the goods mentioned in the complaint by force of the affidavit made by the plaintiff in an action brought by one Isadore Bernhard v. A. Schles-singer and M. Rothschild, to recover the possession of personal property; and also alleged that Schlessinger and Rothschild had reclaimed the possession of the property in the mode prescribed in the Code, and that the sheriff (Orser) had given them an order for the redelivery of all the property, including the goods alleged to belong to the plaintiffs, but did not aver that they had taken possession of these goods under the order.
    The answers also averred that the plaintiffs, not having served upon the defendants, or either of them, any affidavit, setting forth their claim and the grounds thereof, could not maintain their action against the defendants, jointly or severally, and that in no event could they maintain their action against the defendants jointly, for the matters alleged in the complaint.
    Upon these pleadings, the cause was tried before Slosson, J., and a jury, on the 19th April, 1854.
    It was proved on the part of the plaintiffs, that on the 14th of March, 1853, Schlessinger and Rothschild had sold and delivered to them the goods mentioned in the complaint, and that, at the same time, Schlessinger and Rothschild bought other goods from the plaintiffs, and that the price of these being deducted, the plaintiffs gave their note for the balance, which was duly paid at its maturity. It was also proved, that on the 16th or 17th of ■ March, the defendant Wilson, had taken away the goods thus sold for the plaintiffs from their store, and it was admitted on the part of the plaintiffs, that Wilson, in so doing, had acted as a deputy sheriff, under the claim and delivery papers set forth in the answers.
    The plaintiffs then rested, and the counsel for the defendants, upon tbe grounds subsequently relied on, upon tbe argument at General Term, moved for a dismissal of tbe complaint. Tbe motion was denied, and tbe counsel exeepted to tbe decision.
    Tbe defendants then offered to prove: -1. Tbat at tbe time of bringing this action, and at tbe time of tbe taking of tbe goods, for wbicb it was brought, Bernbard was tbe owner of tbe property, and entitled- to its possession as against tbe plaintiffs. 2. Tbat tbe defendant, Orser, under tbe papers in tbe action of Bernbard against Scblessinger and Rotbscbild, and by tbe direction of Bernhard, authorized bis deputy Wilson to take tbe property from tbe premises of tbe plaintiffs.
    This evidence was offered an behalf of each defendant, first in bar of tbe action, and next in mitigation of damages.
    Tbe court, upon tbe objection of tbe counsel for tbe plaintiffs, excluded tbe evidence; and tbe counsel for tbe defendants, on behalf of each of them, excepted to tbe decision.
    Evidence was then given on both sides, as to tbe value of tbe goods, and when tbe testimony was closed, tbe counsel for tbe defendants renewed tbe motion for tbe dismissal of tbe complaint, wbicb was again denied.
    Has honor, tbe Judge, charged tbe jury, and ruled tbat tbe facts proved and offered to be proven by tbe defendants, did not constitute any defence to tbe action on tbe part of either of tbe defendants; to wbicb ruling and charge tbe defendants, by their counsel,' then and there severally excepted. Tbe court further ruled and charged tbat tbe proceedings in tbe suit of Bernhard v. .Schlessinger & Rothschild\ to obtain tbe immediate delivery of tbe property, did not authorize tbe defendant Wilson, to enter tbe store of tbe plaintiffs, nor to take tbe goods therefrom. To wbicb ruling and charge, tbe defendants then and there severally duly excepted. Tbat tbe only question for tbe jury to determine, was tbe value of tbe silks at tbe time they were taken by Wilson, on tbe 16th of March, 1854. To wbicb portion of tbe charge, tbe defendants by their counsel severally duly excepted. Tbat tbe rule of damages was not what it would cost to supply another article wbicb would answer tbe same purpose, but what this kind of goods could have been bought for in tbe market at tbe time they were taken.
    The jury retired, and, returning into court, rendered a verdict for tbe plaintiffs for $888.59 damages, being tbe value of tbe goods as found by tbe jury, and interest since tbey were taken from tbe plaintiffs.
    It was thereupon ordered by tbe court, tbat a case be made, and tbat tbe plaintiff apply at tbe General Term, in tbe first instance for judgment tbereon, with leave to tbe court to direct a nonsuit, or dismissal of tbe complaint, or judgment for tbe defendants.
    
      J. Sutherland and R L. Rancher, for tbe plaintiffs,
    now moved for judgment on tbe verdict, and, in support of tbe motion argued substantially as-follows:
    Tbe suit was properly brought, both against tbe sheriff and bis deputy. The latter was tbe actual party who took tbe goods from the plaintiffs, and tbe former directed him to do so, and adopts and persists in tbe alleged lawfulness of tbe trespass. (Waterbury v. West&velt, et at, Courtof Appeals.)
    Tbe justification set up, and offered to be proved by tbe defendants, was insufficient, as a defence, and tbey were trespassers in taking tbe goods from tbe plaintiffs; inasmuch as tbe plaintiffs in this action, (in whose possession tbe goods were, and who were tbe owners thereof,) were not parties in tbe “ claim and delivery” action. Tbe papers in tbat action only authorized tbe defendants to take tbe goods from tbe possession of whoever were named as defendants in those papers, or their agents. (See Code, § 209.)
    Had tbe plaintiffs in this action been made defendants in tbe action brought by Bernhard, tbey could have defended successfully ; inasmuch as tbey bad given their note and other goods, in payment for tbe eighty-six pieces of silks in question. {French v. Root, 13 Wend. 572; Ash v. Putnam, 1 Hill, 305.)
    Tbe pretence of tbe defendants, tbat tbe plaintiffs must try their title in tbe present suit with them, is absurd; for tbe result will not bind Bernhard. Tbe Code evidently contemplates, tbat all persons who are in possession of goods claimed by another, shall be made parties to any “ claim and delivery” proceedings; and for tbe very purpose of allowing them to litigate their title.
    There was no error in any ruling or decision of tbe learned Judge, on tbe trial, nor in bis charge to tbe jury; and tbe plain-' tiffs should have judgment on tbe verdict with costs.
    
      
      A. J, Vanderpool, for tbe defendants.
    We insist that tbe mo- ■ tion for a nonsuit, ought to baye been granted:—
    I. Tbe defendants were protected in taking tbe goods from tbe plaintiffs, under tbe claim and delivery papers, in tbe suit of Scblessinger and Rotbscbild. Tbe process was against specific property; it was a proceeding in rem, and was regular upon its face, and trespass cannot be maintained against tbe officer acting under it.
    Tbe action for tbe claim and delivery of personal, property under tbe Code, is a substitute, and is governed by tbe same rules as tbe former action of replevin. No action could be maintained against tbe officer, acting under a writ of replevin, except when tbe claimant complied witb certain statutory regulations, enacted for tbe protection of tbe officer. Tbe right of action in favor of a third person, who claimed tbe property taken under tbe writ, was limited, so that it could only be.maintained against tbe plaintiff in tbe writ, except where tbe officer was indemnified, or violated tbe provisions of tbe statute. (Shipman v. Ciarle, 4 Denio, 446.)
    Under tbe 216th section of tbe Code, no claim to tbe property by any other person than tbe defendant or bis agent, is valid against tbe sheriff, unless made as therein provided; and tbe plaintiffs in tbe suit, bad not, in any respect, complied witb tbe . provisions of that section.
    TT. The Justice erred in refusing to allow tbe defendants to prove that Bernhard was tbe owner of, and entitled to tbe possession of tbe property, as against tbe plaintiffs.
    Tbe defendant, acting under tbe directions of tbe owner, as well as under bis process, was authorized to take tbe property whenever be could find it.
    If tbe evidence did not constitute a bar, it was still competent in mitigation of damages.
    TTT. The action cannot be maintained against tbe defendant Orser. He was not present at, and did not personally participate in tbe alleged trespass, and cannot be made bable under tbe facts as proven in this case; and if a trespasser, be was only such by relation, and cannot be joined in an action witb an actual trespasser.
    
      The Justice erred in his charge to the jury, upon the question of damages. ■ ■ .
   By ttu; Court.

Duer, J.

It may be conceded, as the Su-

preme Court, in Shipman v. Clark, seems to hare decided, that as the law stood before the Code, the sheriff could not be made liable as a trespasser, for taking the goods particularly described in a writ of replevin, from the possession of a third person claiming to be the owner, but when we look at the form of the writ as given in the Revised Statutes, (2 R. S. p. 523, § 6. Yide also, § 524,) the reason for exempting the sheriff from this liability is at once apparent. The writ, not indeed by express words, but by a necessary implication, authorized the sheriff to take the goods, wherever they might be found within his county; since it was only when they could not be found within the county, that he was directed to arrest the defendant. But by an alteration.of the law, which seems eminently proper, the powers of the sheriff, in the action for the delivery of personal- property, which has been substituted for replevin, are far more limited. He can only take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant or his agent. (Code, § 209.) Hence, if the property is in the possession of any other person than the defendant, the sheriff in taking it, acts at his peril, and can only free himself from liability as a trespasser, by showing that this person was in reality no. more than an agent of the defendant, and in this capacity alone, held the possession. If he fail in this proof, we cannot doubt that he is just as liable for the value of the property, to the person from whose possession it is wrongfully taken, as he is to the true owner of goods, which are levied on and sold, under an execution against another. In both cases, he can only defend himself by proving that the property belonged to the defendant in the action. It is not denied, that the goods now in question, when taken by the defendants, were in the actual possession of the plaintiffs, nor is it pretended, that they held the possession as the agents of Schlessinger and Rothschild. On the contrary, it is clearly proved, that they claimed, and for aught that appears, justly claimed to be themselves the owners. It is, therefore, certain, that the defendants in taking the goods from the possession of the plaintiffs, exceeded- their authority and violated tbeir duty, and must be liable for tbe damages found by tbe jury, unless we are compelled to say, that tbe complaint ought to bave been dismissed on tbe trial, or tbat tbe evidence tben offered on tbeir bebalf, was improperly excluded.

Tbe Code provides tbat wben tbe property taken by tbe sheriff, is claimed by any other person than tbe defendant or bis agent, such person shall make, and serve upon tbe sheriff, an affidavit, showing bis title to tbe property, and bis right to its possession, and'tbat no such- claim shall' be valid against tbe sheriff, unless it is made in tbe mode prescribed. (Code, § 216.) And it has been insisted, tbat as no such claim and affidavit were made by tbe plaintiffs, they cannot be entitled to recover; but we are satisfied tbat tbe objection is groundless, and tbat tbe provisions tbat bave been quoted, are only appbcable wben tbe property has been taken by tbe sheriff, in tbe proper discharge of bis duty; tbat is, from tbe possession of tbe defendant or bis agent. They were never meant to protect him where bis original taking of tbe property was a wrongful act, for tbe consequences of which, be was immediately liable. It appears from other provisions.in tbe section, tbat the sheriff is not bound to deliver tbe property immediately, and as a matter of course, to a claimant who has made and served tbe required affidavit. On tbe contrary, be has a right to retain it a reasonable time, for tbe purpose of ascertaining whether tbe plaintiff in tbe action will consent to indemnify him, and if tbe indemnity is given which be has a right to demand, it is to tbe plaintiff, and not to tbe claimant, tbat tbe property must be delivered. We cannot, however, believe tbat it was tbe intention of tbe framers of tbe Code, or of tbe Legislature, tbat tbe sheriff should retain, for any period or purpose, tbe possession of property which be bad no authority, and is in effect, forbidden to take, and still less, tbat be should deliver tbe property so taken to tbe plaintiff in tbe action. We think tbat to give this construction to section 216, would be to render it plainly inconsistent with tbat limitation of tbe sheriff's authority, which tbe preceding section, 209, has defined and imposed.

Tbe objections tbat tbe defendant Orser, not having been present in- person, wben tbe goods in question were unlawfully taken, by bis deputy, ⅛ not bable as a trespasser at all, or, if bable, cannot be joined in an action witb bis deputy, are tbe same tbat were fully considered and distinctly overruled by bis court, in tbe case of Waterbury v. Westervelt, a case not reported, but in wbicb our judgment, we know, bas been affirmed in tbe Court of Appeals. When tbat case was before us, all tbe authorities bearing on tbe question were carefully examined, and especially tbe judgment of tbe Supreme Court of Massachusetts, in Campbell v. Phelps, (1 Pick. R. 62,) tbe case on wbicb tbe counsel- for tbe sheriff mainly relied. We thought, however, and still think, tbat tbe opinion delivered in tbat case, by Mr. Justice Wilde, was more satisfactory in its reasoning, and better sustained by authority and by analogy, than tbat of tbe majority of bis brethren, from whom be dissented; and such must.also have been tbe opinion of tbe Court of Appeals, in affirming our judgment. At any rate, tbe decision of the Court of Appeals, bas settled tbe law in favor of tbe right of tbe plaintiffs to maintain their action, in its present form.

• Tbe evidence tbat was offered to prove tbat tbe property of tbe goods was in Bernhard, and not in tbe plaintiffs, was very properly excluded, not only because no such defence is set up in tbe answer, but for tbe conclusive reason tbat tbe defence of a paramount title in a stranger, is one tbat trespassers can never be allowed to make. (11 John. 132; 13 John. 276; 1 Wend. 466; 7 Term R. 354; 8 id. 403.) Tbe defendants were not acting as tbe private agents of Bernhard, but in their official capacity, and it was upon their authority so to act, tbat tbe question of their liability solely depended. Bernhard is in no sense a party to this „ action, and it is only in an action to wbicb be is a party; tbat tbe question, whether tbe goods belonged to him or to tbe plaintiffs, can be properly determined. As tbe goods, when taken, were in tbe possession of tbe plaintiffs, as owners, tbe defendants were not at liberty to contest their title, otherwise than by showing (that tbe property belonged in fact to Schlessinger and Rothschild, and tbat tbe plaintiffs held tbe possession merely as their agents; ,-and no such evidence was given, or attempted to be given.

Tbe direction of tbe Judge as to tbe rule of damages, was entirely correct. Tbe plaintiffs were entitled to recover tbe market value of tbe goods, and were not limited, to tbe price which they bad paid for them.

As we are of opinion tbat none of tbe exceptions tbat were taken on tbe trial can be sustained, tbe plaintiffs are entitled to judgment upon tbe verdict, witb costs.

Judgment accordingly.  