
    LOUISA D. WEHLE, Plaintiff and Respondent, v. HENRY L. BUTLER, et al., Defendants and Appellants.
    In the case of several attaching creditors, if the sum obtained by the sheriff on the sale was more than sufficient to satisfy the execution of the creditor who has the prior lien, the surplus would be applicable to the claims of the other attaching creditors, and their attachments would hold this surplus.
    An action being brought against the judgment creditor to recover the value of the property taken by his attachment and sold on his judgment and execution, the evidence of there being a surplus, and other attaching creditors, would be available to the defendant, in mitigation pro tanto of damages.
    Upon such a state of facts it would be error to exclude such evidence, although the facts were not set up in the answer. Being in mitigation of damages, it need not be pleaded (Travis «. Barger, 24 Barb. 614).
    Mere proof of other attachments, without any proof of the surplus to apply on the same, is "not admissible in mitigation of damages.
    In the absence of proof of the amount of the judgment, and the amount obtained by the sheriff on the sale to apply on the same, it may be assumed that the whole proceeds of the sale were exhausted by the execution issued upon the judgment, leaving nothing applicable to the claims of the other attaching creditors.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.
    
      Decided March 2, 1872.
    This was an appeal from, a judgment recovered by the plaintiff for the value of a stock of goods, taken by virtue of void attachments issued on application of the defendants out of the marine court.
    The defendants procured six attachments, all of which were vacated by order of the marine court. The goods were sold upon an execution issued by defendants upon a judgment obtained in one of these actions.
    It appeared in evidence that other parties had obtained attachments and levied upon the same property. This testimony was stricken out by order of the court.
    ■ Defendants offered to prove that after these actions in the marine court had terminated, and before this action was commenced, they had commenced new actions in the common -pleas, and attachments had issued therein, and the sheriff had seized and now held these same goods under those attachments. On objection, this testimony was excluded.
    
      Dubois Smith, for appellants.
    
      Charles Wehle, for respondents.
   By the Court.—Monell, J.

It does not appear with any distinctness, that the execution, under which the sheriff subsequently levied upon and sold the property, seized under the attachments, was issued upon a judgment in favor of these defendants in the action in which the attachments were granted. It does appear, however, that the subsequent levy and sale was under an execution, which these defendants had issued, and it may, perhaps, be assumed that it was issued upon a judgment in their favor and against the plaintiff.

The amount of the judgment is hot stated ; nor does it appear, from the papers before us, what was the amount of the defendant’s claim. If,_ therefore, the sum obtained by the sheriff on the sale was more than sufficient to satisfy the defendant’s execution, the surplus would be applicable to the claims of the other attaching creditors. In that event, their attachments would hold to the extent of such surplus, and their existence would be available to the defendants in this action, in mitigation, pro tanto, of damages.

Upon such a state of facts, it would have been erroneous to have excluded the evidence and levy of such attachments, even although it was not set up in the defendant’s answer, doing merely in mitigation of damages, it need not have been pleaded (Travis v. Barger, 24 Barb. 614).

But the defendants had not furnished sufficient evidence to make their offer available. If the sale by the sheriff was under an execution in their favor, and their judgment was sufficient to exhaust the whole proceeds of sale, then the subsequent attachments were no lien upon any of the property ; and no part of the proceeds went to the plaintiff’s benefit, in satisfying the claims of other creditors.

Upon the proof, therefore, before the court, the offer to prove the attachments was, properly overruled, and the case is brought directly within Lyons v. Yates, 52 Barb; 237, and Peak v. Lemon, 1 Lans. 295.

Every intendment is in favor of sustaining the judgment ; and it was incumbent on the defendants to show clearly a state of facts, leaving nothing to inference or implication, which would have made the evidence they offered proper.

Having failed to show such facts, it was proper for the learned justice at the trial to assume that the whole proceeds of the sale were applied to the defendant’s execution, leaving nothing for the other creditors to attach.

Upon such assumption, the attachments could furnish no proof in mitigation of damages.

The. judgment should be affirmed.  