
    Harry Geller, Appellant, v. Harris Rosenfeld, Jr., and Others, Respondents.
    Second Department,
    June 10, 1910.
    Evidence — warrant of attachment — action on undertaking — vacation of warrant — subsequent sale of property under valid process.
    In an action against the principal and surety on an undertaking for a warrant of attachment evidence that, although the original warrant was vacated, a second one was later secured and placed in the hands of the marshal who was holding the property under the first warrant, and that the property was eventually sold in that action under valid process, is incompetent either as a defense or in mitigation of damages.
    Appeal by the plaintiff, Harry Geller, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 11th day of October, 1909, in an action brought to recover damages alleged to have been sustained through the unlawful taking of his property under a warrant of attachment which was subsequently vacated.
    . Jacob L. Holtzmann and Charles B. Law, for the appellant.
    No brief for the respondents.
   Rich, J.:

The defendant Harris Rosenfeld, Jr., on January 20, 1909, obtained a warrant of attachment in an action brought by him against the plaintiff in this action, to recover for goods, wares and merchandise sold and delivered. The defendant Jacob ■ Bosenfeld was one of the sureties upon the undertaking given by the plaintiff in the attachment proceeding. The other surety, the defendant Powell, has not been served. The plaintiff in this action was a small dealer in groceries and produce; Under the warrant of attachment "the city marshal levied ujion and took out of the plaintiff’s store and possession property which he valued at $63.83. Later the warrant of attachment was vacated and set aside,, but the property of the plaintiff or its avails has never been returned to him. Upon the trial of the action the plaintiff testified that the value of this property was $215.91, and that he employed counsel who succeeded in having the attachment vacated at an expense of $50. Towards the close of the trial the justice, after an extended inquiry, learned that after the warrant of attachment was vacated, a second warrant was secured and placed in the hands of the marshal who held the property under the first warrant, and later, that such property was sold in that action under valid process.' Upon learning this fact, the court, over plaintiff’s objection and exception, directed an adjournment until the following morning, and said to counsel: The Oourt, in view of the situation having been revealed that a judgment was obtained in the Third District Court of the . Borough of Brooklyn by Harris Bosenfeld against Harry Geller, and that said judgment roll is very material for the purpose of deciding the main issue in the present action, the Court, for the purpose of trying the issues fairly and squarely, will adjourn the case until to-morrow morning at 9:30 o’clock; trial then to be resumed and such judgment roll to be produced as evidence in the case for the proper determination of the issues in the action.” On the following morning, over the objection of the plaintiff that such evidence was incompetent, irrelevant, immaterial and not pleaded, the judgment roll referred to, execution and. marshal’s ■ return were' received in evidence, and the plaintiff duly excepted, The court later rendered a judgment in plaintiff’s favor for twenty-five dollars damages and two dollars costs.

It is clear that the trial court reached the conclusion that the sale of the property under the second attachment was a complete defense to an action for damages sustained by plaintiff through the taking of such property under the first attachment. If the plaintiff was entitled to recover damages for the wrongful taking of his property, the evidence would not permit or sanction so small a recovery. The plaintiff’s evidence of its value was $245.94, and the .defendant’s $63.83. To this is to be added the reasonable expense in the proceeding to vacate the attachment.

The trial court erred in admitting the judgment roll, execution and return of the marshal. They were incompetent either as a defense or in mitigation of damages. (Hanmer v. Wilsey, 17 Wend. 91; Otis v. Jones, 21 id. 394; Lyon v. Yates, 52 Barb. 237; Livermore v. Horthrup, 44 N. Y. 107,112; Tiffany v. Lord, 65 id. 310; Smith v. Healey, 121 N. Y. Supp. 230.)

The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks, Burr and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  