
    Henry Schwabeland et al., Respondents, v. Edmund P. Holahan, Marshal, Appellant.
    (New York Common Pleas
    General Term,
    November, 1894.)
    A party is not bound to admit all the testimony oí his adversary as true, although calling him as a witness, and the jury are at liberty to adopt or reject it.
    In an action to recover possession of a stock of goods, it appeared that such goods were transferred to plaintiffs on July second, and that defendant posted a notice of sale thereof on the seventh, under an execution against their transferror. Defendant, as a witness for plaintiffs, testified that he had a levy on the seventh, but that he made it on the first, and in this was corroborated by the judgment debtor. It also appeared that no one was in charge of the property at the time of its transfer to the plaintiffs; that the judgment debtor made a bill of sale to them on the ninth, and afterwards sued to set aside the bill of sale on the ground of fraud, in which action he made no reference to the alleged levy on the first of the month. Held, that the jury were not bound to believe all of the defendant’s testimony; that the bill of sale and judgment roll in his action were competent to impeach the testimony of the judgment debtor, and that the jury were justified in finding that no levy was made before July seventh.
    In an action of replevin it is not necessary to prove that the defendant was in possession of the property, where he avers in his answer that the property was taken from him in the action, and prays for its restoration.
    A demand for the return of the property is not essential to a cause of action in replevin where the original taking was wrongful.
    Appeal by defendant from a judgment of the General Term of the City Court of Hew York, affirming a judgment for the plaintiffs entered upon the verdict of a jury awarding to plaintiffs possession of the property claimed in the: complaint, and six cents damages.
    
      Okas. 8. Bloomfield, for appellant.
    
      Forster, Hotaling da Klenhe, for respondents.
   Daly, Ch. J.

This was an action against a city marshal to recover a stock of goods alleged to have been wrongfully taken and detained by him from the plaintiffs on July 7,1892. The defense was a levy and taking of the property on July 1, 1892, from one McCaw, by virtue of an execution against him. The principal issue was whether the levy was made on July first or after that date, as the plaintiffs did not acquire the property before July second, when they received it from McCaw. The first intimation which plaintiffs had of a levy was the posting by defendant on July seventh on the premises of a notice of sale of the goods. On the trial the marshal, who was called as plaintiffs’ witness, testified that he had made the levy on the first. In this he was corroborated by McCaw.

Ho witness was called to contradict the marshal’s statement, but the plaintiffs claim that the jury were at liberty to reject his testimony as that of an interested party, and that his witness McCaw was discredited. The plaintiffs called the defendant as their witness to prove that he made the levy on July seventh, the date alleged in the complaint; the defendant stated that he had a levy on the seventh, but added that he made it on the first. The appellant claims that the plaintiffs are bound by this statement in the absence of conflicting testimony. The plaintiffs are not bound to admit all the testimony of their adversary as true, although calling him as their own witness, and the jury were at liberty to adopt or reject it. Cross v. Cross, 108 N. Y. 629. The jury might believe the evidence favorable to the plaintiffs as wrung from an unwilling witness, and might treat that which was unfavorable with that degree of belief which they thought it deserved, considering the eircnmstances of the case. Becker v. Koch, 104 N. Y. 394 ; Wolf v. Farley, 40 N. Y. St. Repr. 808 ; Davey v. Lohrmann, 1 Misc. Rep. 317 ; 48 N. Y. St. Repr. 716.

The circumstances which the jury might take into account in considering whether a levy was-made on the first of July were: That the officer left no person 'in charge of the property, and that the judgment debtor, whom he called to corroborate him, transferred the property to the plaintiffs on the second of July without' mentioning the levy to them, and afterwards, on July ninth, made a bill of sale to them of the property, and subsequently on July twentieth; that he after-, wai’ds commenced an action against them to set aside the bill of sale on the ground of fraudulent representations by their agent that they had a purchaser for the business, praying aminjunction restraining them from interfering with the property, claims which were wholly inconsistent with his knowledge of a levy actually made before any of the transfers, and of a right of possession in the marshal for the purpose of satisfying an execution in favor of a" bona fide creditor. It is to be noted" that the plaintiffs had commenced this replevin action before McOaw’s suit in equity, and that he recites that fact in his ■complaint and yet fails to set up the important fact of a prior levy.

Under the circumstances we cannot say that the jury erred in finding that the levy of the marshal was not made before the seventh, when he posted his notice of sale. It is claimed on appellant’s part that the action will not lie because it is not shown that the marshal ever had possession of the property. It is not necessary to prove that fact, since he averred in his answer that the property- was taken from him by the replevin proceedings in this action and prayed for its restoration.

The exceptions are untenable. The admission of the judgment roll in the Superior Court and the bill of sale of July ninth were proper in impeachment of McCaw, even if not proper to show plaintiff’s title through him. But the judgment roll was competent to show the transfer on July second from McCaw to the plaintiffs. ■ Of course the title could be attacked by any one not a party to the record, and it was prima facie proof only. The admission of the bill of sale to Moss worked no injury to defendant, as it merely contained facts called out by both sides from him when on the stand. The objection that no demand for a return of the property was proven is of no force, because the original taking by the marshal was wrongful. Masten v. Webb, 24 Hun, 90 ; Stillman v. Squire, 1 Den. 327. It is contended by appellant that the answer of the plaintiffs in McCaw’s action, that they had possession of the goods on and after July second, is conclusive against their present claim against the marshal in this action ; but that defense was set up as against McCaw and not against the marshal, and is merely an averment that as against McCaw they had such possession.

The judge submitted to the jury the question whether the marshal relinquished his levy if he had one on July first, and instructed the jury that if he relinquished his rights, and the property was turned over to the plaintiffs in good faith on the second of July, their verdict must be for the plaintiffs for the return of the property. The defendant’s counsel excepted as follows: I except to that portion of the charge wherein your honor charged in relation to the relinquishment by the defendant.” This exception did not point out the error complained of, to wit, that if the marshal did relinquish his levy and left the property in possession ■ of the plaintiffs, the action could not be maintained. Part of the instructions to the jury on the subject of relinquishment were correct, and the defendant’s vague exception to what was charged in relation to relinquishment was too general.

The judgment must be affirmed.

Bischoff and Pryor, JJ., concur.

Judgment affirmed, with costs.  