
    GEORGE M. CHAPMAN, Plaintiff and Respondent, v. JAMES O’BRIEN, Sheriff, ALEXANDER DOUGLAS, JACOB SEEBACHER, JOHN GRAHAM, and CHARLES A. JENKINS, Defendants and Appellants.
    I. EXECUTION AGAINST PROPERTY.
    1. Bond of indemnity—special condition—what sufficient proof to make a prima facie case against sureties under.
    1. Special clause.
    
    
      a. The bond recited the recovery of a certain judgment, and the issue of an execution thereon to the sheriff against the property of the judgment debtor, and then further recited, “Whereas certain personal property that appears to belong to the said judgment debtor against whom said execution has been issued, as aforesaid, is claimed'by some other party or parties,” and was conditioned to save the sheriff, and all persons aiding him from al! harm, &e., that might arise, &c., against him or them, “ as well for the levying, attaching, and making sale under and by a virtue of such execution of all or any personal properly which he or they shall or may judge to belong to said judgment debtor, as in entering any shop, store, building, or other premises for the taking of an such personal property.”
    2. Evidence, what establishes a prima facie case against the sureties under such a clause.
    
    
      a. Where the answer of the sureties, after a general denial, in a separate affirmative defense claims that the property for the taking of which the action is brought was the same property which was levied on under an execution issued in a certain described action, the description of which is the same as the description contained in the bond of the action therein referred to, and further claims that such property belonged to the judgment debtor in the judgment described in the answer; and the efforts of all the defendants (being the sureties, the sheriff, and the deputy, who made the levy) arc directed at the trial to elicit and establish the facts that the property in question was the ■ in the possession of, and used by the judgment debtor; that it apparently belonged to him; that he had really a levible interest therein, and that it was rightfully levied on;
    
      a prima facie case is presented,
    that the sheriff had not only levied on the property claimed by the plaintiff, hat that he had judged that it belonged to the judgment debtor, and,
    1. A motion by the sureties to dismiss the complaint was properly denied.
    
    
      a. If at the conclusion of the whole testimony, a doubt remained whether the levy was within the authority conferred by the bond, the jury should be directed to determine the fact.
    
    n. NEWLY DISCOVERED EVIDENCE.
    1. Motion for new trial on ground of denied, although the
    MOVING PAPERS SHOW A PRIMA CASE.
    
      a. When the case made by them is to a great extent neutralized by opposing affidavits, and the credibility of the affiants for the moving party is materially impaired by retractions, explanations, and qualifications, made by some of them in subsequent affidavits, in which they also stated the manner in, and inducements under, which these prior affidavits had been procured, and other suspicious circumstances appeared, such as that several of the affiants could not be found at the places of residence given by them; that one denied that he had signed or sworn to any affidavit; that another had admitted that the affidavit made by him was untrue, and had been made for a money consideration; that the moving party had paid out considerable money, and had agreed with one of the affiants to pay him a large sum for the discovery and procurance of testimony sufficient to obtain a new trial,
    
      the motion should be -denied.
    
    Before Monell, Cli. J., and Freedman, J.
    
      Decided April 5th, 1875.
    The plaintiff complained as follows : “ That heretofore and at the several times hereinafter mentioned, he was in possession of the premises, in the city of New York, being the third and fourth lofts of factory, on the north side of West Thirty-third street, between Tenth and Eleventh avenues ; that on or about the 5th day of February, 1868, the defendants broke and entered into and upon the said premises, and committed divers injuries to said premises and the personal property therein, and took and converted to their own use divers articles, consisting of machinery, furniture, and fixtures, then and there being the property of the plaintiff, of the value of about thirty thousand dollars ; all of which is to the damage of the plaintiff the sum of thirty thousand dollars; for which said sum, with interest thereon from the 5th day of February, 1868, the plaintiff demands judgment.”
    The defendants’ answers contained, in effect, a general denial and a justification of the taking of the property by the defendant, James O’Brien, as sheriff, and the defendant, Jacob Seebacher, as deputy-sheriff, under executions against the property of one William R. Ellis, a judgment debtor, in favor of the defendant, Alexander Douglas.
    The defendants O’Brien and Seebacher further alleged :
    (1) That under and by virtue of said executions they, as sheriff and deputy-sheriff respectively, forthwith, upon the receipt of the same made a formal levy upon certain furniture, machinery, and fixtures of the character and description of those mentioned and described in the complaint, and took the same into their custody, which they believe to be the same personal property referred to in the complaint.
    (2) That the said levying upon and taking possession of said personal property, was merely formal, and said property was not removed, nor in any way disturbed, and that after having nominal possession of the same for two days only, they having made a levy upon other property of said William R. Ellis, of sufficient amount to satisfy the executions and precept aforesaid, before the commencement of this action returned said furniture, machinery and fixtures to the possession of the parties from whom the same were taken, in like good order and condition, in every respect, in which the same were received; and that the said levy, and taking, and detention, as aforesaid, constitute the supposed wrongful taking and conversion in the complaint alleged.
    At' the trial the plaintiff had a verdict for seven thousand one hundred dollars.
    Defendants’ counsel moved for a new trial upon the judge’s minutes, which motion was denied, andan order was entered to that effect.
    Subsequently the defendants moved, on a case and exceptions and on affidavits, at a special term of the court, for a new trial on the ground of newly discovered evidence. This motion was also denied.
    The defendants appealed from the judgment, and the two orders denying the motions for a new trial.
    
      Brown, Hall, and Vanderpoel, attorneys, for appellants O’Brien and Seebacher.
    
      R. C. Elliot, attorney, and of counsel for appellants Douglas, Graham, and Jenkins, urged:
    I. The simple giving of a bond of indemnity to the sheriff, it is submitted, is not enough to justify a recovery against the judgment creditor in the execution and the sureties, unsupported by any evidence showing the giving of the bond for the purpose of seizing the property in question, or any direction to the sheriff to levy upon the property. Not a particle of evidence had been given connecting these defendants with the alleged levy at the time said motion was made, neither was any presented afterwards. The sheriff having been directed to levy upon the property of Ellis in the second floor, the sewing machines, &c., which this plaintiff claimed, and the bond having been called for and given to indemnify the sheriff in seizing that property ; he is neither indemnified nor authorized, nor directed by anything in the bond to seize property on the third floor—property that never appeared to belong to the judgment debtor Ellis—property that the judgment creditor and his sureties knew nothing about. And the sureties are not liable for his act in so doing. If they are liable for this act of the sheriff, by reason of a wrongful levy upon the next floor, so would they be for a levy in the next building or the next block. The authorities in relation to this question are not numerous (Davis v. Newkirk, 5 Den. 92; Averill v. Williams, 1 Den. 501; Same Case, 4 Den. 295; Allen v. Crary, 10 Wend. 349; Stewart v. Wells, 6 Barb. 79: Fonda v. Van Horne, 15 Wend. 631; Herrick v. Hoppock, 15 N. Y. 413; Ball v. Loomis, 29 N. Y. 412; Ford v. Williams, 13 N. Y. 579; Chapman v. Douglas, 15 Abb. Pr. N. S. 421; Griffiths v. Hardenburgh, 41 N. Y. 464). In ail the cases either the bond of indemnity was given to seize particular property as in Davis v. Newkirk, or the plaintiffs below directed the levy, as in Allen v. Crary, and the parties are responsible only so far as they may have directed or assented to the doing of the act complained of (Chapman v. Douglas, 15 Abb. P. N. S. 428).
    
      Erastus New, attorney, and of counsel for respondent, urged
    I. It is too late for defendants to object that the evidence was insufficient to sustain the verdict, no such objection having been made at the trial. They took the chance of a verdict in their favor, and now they ought to be bound by the result (Rowe v. Stevens, 34 N. Y. Sap'r Ct. 437; 45 N. Y. 632).
    II. The defendants, Douglas, Graham and Jenkins, were liable for the acts of the sheriff, by reason of their having executed and delivered to him on January 29th, 1868, the undertaking in question. This authorized and directed the sheriff to levy on any property he might “judge” belonged to Ellis. O'Brien and Seebacher, in their answers, allege that the property levied on belonged to Ellis, and the defendants who signed the undertaking, in their answer also allege that the property levied on under the executions, “ being the same property mentioned and referred to in the complaint,” belonged to said Ellis. It is clear from this that the sheriff was acting within the provisions of said undertaking, and that the property levied on, was by him “judged” to belong to Ellis. The parties to the undertaking being liable to the sheriff for his acts in making said levy, are also liable to the plaintiff for the acts of the sheriff (Herring v. Hoppock, 15 N. Y., 409; Ball v. Loomis, 29 N. Y., 413; Davis v. Newkirk, 5 Denio, 92). In Davis v. Newkirk, Beardsley, Ch. J., says : “All who direct, request or advise an act to be done which is wrongful, are themselves wrongdoers, and responsible for all damages.” In Chapman v. Douglas, (15 Abb. Pr. N. S., 421), the sheriff levied upon a safe, and carried away also a quantity of silk, in said safe at the time, the plaintiff refusing to unlock said safe and remove said silk. The sureties were held liable for the act of the sheriff in taking the safe, but not for his act in taking the silk, because the sheriff did not pretend to levy on said silk, nor did he judge that it belonged to the judgment debtor. In the present case, the sheriff did levy on the property of plaintiff, and did judge that it belonged, to Ellis.
    III. The pretended newly discovered evidence is cumulative within the rule, as laid down in Brisbane v. Adams, 1 Sandf., 195; Leavy v. Roberts, 8 Abb. Pr., 310; Tripler v. Ehehalt, 5 Rob., 609; Sheldon v. Stryker, 27 How., 387; Ritter v. Phillips, 34 N. Y. Sup’r Ct, 290; Peck v. Hiller, 30 Barb., 659; 45 Id., 201.
    IV. The affidavits of the defendants are so folly contradicted, corrected, and explained by the counter affidavits of the plaintiff as to be unreliable, and insufficient to warrant a new trial. The evidence is not such as would be likely to influence a verdict (Darbee v. Elwood 3 How., 599).
   By the Court.—Freedman, J.

The exceptions taken during the trial, relate to the admissibility of the indemnity bond given by the defendants, Douglas, Graham, and Jenkins, to the sheriff, and to their liability thereon, for the sheriff’s acts. The bond contained an obligation in the sum of one thousand dollars, and it recited the recovery by Douglas, of a judgment against William R. Ellis ; that an execution had been issued thereon, and had been directed and delivered to the sheriff; and that certain personal property which appeared to belong to the said judgment debtor, was claimed by some other party or parties. The condition of the obligation was then stated to be such, “that if ; the above bounden obligors shall well and truly save, keep and bear harmless, and indemnify the said James O’Brien, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, special proceedings, and executions, that shall or may at anytime arise, come, accrue or happen to be brought against him, them, or .any of them, as well for the levying, attaching and making sale under and by virtue of such execution of all or any personal property which he or they shall or may judge to belong to the said judgment debtor, as' in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue.”

This bond authorized the sheriff, and all persons acting under him to levy on any property which he or they might judge belonged to Ellis. It was therefore clearly admissible against the parties who had executed it.

As to their liability thereon, it appeared from their answer, that they claimed that the property levied on under the execution, was the same property which was mentioned, and referred to, in the complaint, and that the same belonged to Ellis. The answers of O’Brien and Seebacher also contained an allegation that the property levied on belonged to Ellis. At the trial, the efforts of all the defendants were directed to elicit and to establish the fact that the property in question was in the possession of and used by Ellis ; that it apparently belonged to him ; that he had really a leviable interest therein ; and that it was rightfully levied upon. A prima facie case was thus presented, that the sheriff had not only levied on the property claimed by the plaintiff, but that he had judged that it belonged to Ellis. Under these circumstances, the refusal to dismiss the complaint as against the defendants, Douglas, Graham, and Jenkins, was not error. If at the conclusion of the whole case there remained a doubt as to whether, in making the levy, the sheriff did not exceed the discretion or authority conferred upon him by the bond as to the particular property levied upon, or any part thereof, the court should have been requested to-submit such question to the jury as a question of fact,. But no such request was made.

The defendants also failed to move for the direction of a verdict, and to except to the charge. Under these circumstances, and there being sufficient evidence to sustain the verdict, the motion for a new trial on the minutes was properly denied. On looking over the testimony, no sufficient reason can be discovered why such ruling should be disturbed. All the questions of fact involved in'the case, the ownership of the property, the levy of the sheriff, and the extent of his interference with the property, the release of the levy, the return of the possession of the property, and plaintiff’s acceptance, and the amount Of damages sustained by the plaintiff, were fully and fairly submitted to the jury upon testimony more or less conflicting, and under a charge with which all the defendants were so well satisfied that none of them excepted to it, or any part thereof. The defendants are not entitled, therefore, to have the verdict set aside as being against the weight of the evidence given upon the trial.

The defendants further insist that notwithstanding these matters their motion for a new trial on a case should have prevailed, and that a hew trial should have been granted as a favor on the ground of newly discovered evidence. This evidence is by far too voluminous to be satisfactorily adverted to in detail. It is claimed that it establishes that the plaintiff exercised care and control of and over the looms and property in the third and fourth floor of the factory; that he claimed to be the owner of, and endeavored to sell, the same a long time after his alleged abandonment of the property to the sheriff. If its general effect were to be taken as claimed, the evidence would have been material on the trial, for it would have greatly strengthened the theory of the defense that, though originally there may have been a technical abandonment of the property to the sheriff, the levy was in turn abandoned by the sheriff, and that the plaintiff, after notice of such fact, resumed possession and control. In this aspect the evidence is perhaps not cumulative within the rule, and as it can not be said that the defendants were bound to anticipate plaintiff’s denial of the receipt of notice of the abandonment of the levy, and that they should have been prepared'with proof to strengthen their case on that point, a new trial should have been granted on terms, if, upon the case as made on both sides, the general effect of the alleged newly discovered evidence had been left as the defendants intended it should appear, and the evidence had. remained free from suspicion. But its effect was to a great extent neutralized by opposing affidavits, from which it plainly appeared that the alleged control of and interference with the property related not to the property levied upon, but to certain looms owned by Ellis, which, after Ellis’s death, the plaintiff had taken charge of as administrator. The credibility of the remainder of the evidence was materially impaired by the retractions, explanations, and qualifications, which some of the affiants subsequently made in favor of the plaintiff, and by the account which they gave of the manner in, and the inducements under, which their affidavits had been procured. Besides this there were other highly suspicious circumstances. It was positively shown that several of the so-called newly discovered witnesses could not be found at the places of residence given by them in their several affidavits ; another denied that he had signed or sworn to the affidavit which purported to have been made by Mm; and of still another it was proven, without contradiction, that he had admitted that the affidavit made by him for the defendants was untrue, and had been made for a money consideration. It was also made to appear that the defendants had not only paid out considerable sums, but that they had agreed with one of these witnesses to pay him as much as six hundred dollars for the discovery and procurement of testimony sufficient to obtain a new trial.

Under these circumstances the affidavits produced on both sides did not present a case for a new trial within the established practice of the courts, and the motion was properly denied.

The judgment and the two orders appealed from should be severally affirmed, with costs.

Monelb, Ch. J., concurred.  