
    Dennis vs. Snell.
    'An application for leave to amend a pleading, on the trial, is always addressed to the discretion of the court, and if denied, is not the subject of appeal or review.
    Where a complaint alleged that the defendant was sheriff, R. and his deputy, the taking and conversion of the plaintiff’s property by R. under" and by virtue of an execution against the plaintiff, and that such property was exempt; Held that more was set forth than was necessary, the cause of action being complete without any statement of the reason or authority for taking the property, or its exemption.
    
      Held, also, that such allegations were no part of the gist of the cause of action, and were not necessary to be proved, in the first instance, to entitle the plaintiff to recover. That the proof of such facts could only become necessary to meet a defense, and could then be given in evidence, without having been pleaded.
    
      Held, further, that the defendant was not compelled to set up, in his answer, the non-exemption of the property sued for, or be excluded from proving it on the trial, merely because the plaintiff averred its exemption in the complaint.
    Where a sheriff, sued for taking property, relies for his justification entirely upon an execution, and nothing beyond it, it is sufficient for him merely to set forth the writ, in his answer; but if he desires to go further, or it becomes necessary to inquire into the consideration of the judgment, he must plead the judgment, and having averred the existence of a judgment, he will be at liberty to prove it, and then to show its consideration, without having averred it, if material to answer any fact proved by'the plaintiff.
    If the judgment is not set up in the answer, the judge, at the circuit, will be justified in refusing to allow the defendant to show its consideration, as a defense to the plaintiff’s claim that the property was exempt from levy and sale on execution.
    THIS was an action against the defendant, as sheriff, for taking and selling property on execution alleged to be exempt.
    The complaint averred that the defendant was sheriff of Montgomery county ; that, in May, 1864, by his deputy, he took away and converted certain property of the plaintiff, of the value of $232 ; that the plaintiff was a householder, and had a family for which he provided, and that said property was his team, used in their support.
    The answer, after denying most of the allegations of the complaint, for further answer, justified the taking hy virtue of an execution issued to the defendant, as sheriff, out of the clerk’s office of Montgomery county, “ commanding him to collect of the goods and chattels of Alonzo F. Dennis and another, $60.84, which Jonas Plainer recovered against them for damages and costs, on the 2d day of May, 1863, before Charles McLean, a justice of the peace of the county of Otsego, a transcript of which was duly filed' and judgment docketed, in the clerk’s office of Montgomery county, April 1, 1863, (as it is stated in said execution.) And if sufficient goods,” &c.; that the defendant was sheriff of said county of Montgomery, and that said property was duly sold, &c.
    On the trial the plaintiff proved that the defendant was sheriff; that one Eue was his deputy ; that Eue, by virtue of an execution, as set forth- in the answer, levied upon one bay horse, one bay mare, one double harness and one double lumber wagon, the property of the plaintiff, and sold the same ; that their value was $225 ; that at the time the plaintiff was a householder and had a family for which he provided ; that this was his team used in his support; that he had no other property except some household furniture, worth about $50 ; and that the plaintiff forbid the sale and claimed the property as exempt.
    The defendant, thereupon, offered to prove that the execution in question “ was issued upon a judgment rendered upon a note which was given for another horse, which was the plaintiff’s exempt team.” The plaintiff objected to this proof on the ground that it was inadmissible under the pleadings, as evidence, and that the defendant had not set up any such matter as a defense in the answer. The court sustained the objection and the defendant excepted.”
    The defendant then asked leave to amend his answer, to which the plaintiff’s counsel objected, and the court declined to allow the amendment, and the defendant excepted.
    When the plaintiff rested, the defendant moved for a non-suit, on the following grounds :
    
      1st. That the plaintiff had not shown'by the proofs that the property taken and sold was exempt property, nor did it appear from the pleadings.
    2d.- If he had shown the property exempt, then the seizure thereof upon the execution was without the command of the process, and the defendant-is. not liable.
    The court denied the- motion, and the defendant excepted. The defendant then offered to prove the judgment upon which the execution in evidence was issued, and to show that it was rendered for another horse which was exempt. This was objected to on the gound that no judgment had been set up in the answer, and no allegation that it was for the purchase price of exempt property. The court sustained the objection and the defendant excepted, .and the court submitted the question of value to the jury, and upon their finding directed a verdict for the amount, in favor of the plaintiff.
    
      E. Countryman, for the plaintiff.
    
      A. N. Ayers, for the defendant.
   By the Court,

James, J.

The motion for a.nonsuit was properly denied. It was made clearly to appear that the property which the defendant took and sold was exempt from levy and sale on execution. I cannot find any thing in the case, on which to sustain the other ground for nonsuit. If it was based on the idea that the execution contained a direction excepting exempt property from its operation, that fact should have appeared in the case, either by statement, or a copy of the writ set forth, in order to raise the point on appeal. In the absence of all evidence of such exception, the court cannot assume that the writ contained such a direction, although that may be the usual form. Therefore the point cannot be considered.

An application for leave to amend- a pleading on the trial,. is always addressed" to the discretion of the court, and if denied is not the subject of appeal or review. (Phincle v. Vaughan, 12 Barb. 215. New York Marbled Iron Works v. Smith, 4 Duer, 362. Hendricks v. Decker, 35 Barb. 298.)

The complaint in this case set forth the whole grounds of the plaintiff’s cause of action,, viz : That the defendant was sheriff; Rue, his deputy • the taking -and conversion of property under and by virtue of an execution -against him, and that such property was exempt. It set forth more than, was necessary. The cause of action was complete without any statement of the reason or authority for taking the property,, and its exemption. (Butler v. Mason, 16 How. 546.) Such allegations were no part of the gist of the cause "of action, and were not necessary to be proved in the first instance to entitle the plaintiff to recover. (Bedell v. Carll, 33 N. Y. Rep. 581. Esselstyn v. Weeks, 2 Kern. 635. Sands v. St. John, 36 Barb. 628, 31.) The proof of such facts could only become necessary to meet a defense, and could thus be given in evidence without having been pleaded. (Esselstyn v. Weeks, supra.) Therefore the averment of these facts in the complaint did not impose upon the defendant the necessity of averring in his answer any facts other than such as were necessary to answer the material allegations of the complaint. In other words, the defendant was not compelled to set up in his answer the non-exemption of the property sued for, or be excluded from proving it on the trial, merely because the plaintiff averred its exemption in the complaint. The Code only requires the conaplaint to contain a plain and concise statement of the facts constituting the cause of action; in this case, that the defendant, by his deputy, took and converted his property, and its value. An answer is required to contain only a general or specific denial of each material allegation, or the statement of new matter constituting a defense or counter-claim. ■ In this case, the real defense was new matter—-a justification- under a judgment and execution. But as the defendant was an officer, if he relied entirely upon the execution, and nothing beyond it, it was sufficient for him in such case merely to set forth the writ; but if he desired to go further, or it became necessary to inquire into the consideration of the judgment, it would be necessary to plead such judgment and set it forth in his answer, and having averred the existence of a judgment he would be at liberty to prove it; and would then be at liberty to show its considertion, without having averred it, if material to answer any fact proved by the plaintiff.

The theory of such a trial is this : The plaintiff having averred the tortious taking of his property by the defendant, proves the act and the damage, and rests. The defendant having set up that he took it as an officer, by virtue of an execution against the plaintiff’s goods and chattels, proves such execution, and rests. The plaintiff then, (as he may without averment, because the Code allows no reply to new matter constituting a defense in an answer,) proves that he is a householder, with a family, and' that the property taken was his team; that would take the property without the execution. Then before the defendant can be permitted to overcome this, by proof of the consideration of the judgment, he must first establish his judgment. The existence of the judgment was new matter, and required to be pleaded. If the property in controversy had not been exempt property, an execution, fair on its face, would protect the officer, even though there was no legal judgment to back it; and therefore the existence of a judgment for that purpose need not be averred. This is merely for the personal protection of the officer executing process ; but when the officer sees fit to go beyond the power of the process, or for any other reason, whensoever it becomes necessary for him to prove a judgment, he, no more than any other party, can do so, without having pleaded its existence in the answer.

Therefore for the reason that the judgment on which the execution issued was not set up in the answer, the judge at circuit was right in refusing to allow the defendant to show its consideration as a defense to the plaintiff’s claim of exemption from levy and sale on execution of the property in suit.

[St. Lawrence General Term,

October 2, 1866.

Judgment affirmed.

Bockes, James, Rosekrans and Pottter, Justices.]  