
    DAVID WITOWSKI, et al., Plaintiffs and Appellants, v. MATTHEW T. BRENNAN, et al., Defendants and Respondents.
    sheriff.
    His Responsibility in regard to the care and custody op
    GOODS AND PROPERTY, SEIZED AND HELD BY HIM UNDER PROCESS.
    The sheriff and his deputy, making the levy or seizure, are jointly liable, although there was no personal interference or action by the sheriff. No doubt exists as to the liability of the deputy (Waterbury ®. Wcstervelt, 9 N. Y. 604).
    In the care and custody of the property seized, the duty of the sheriff is at least that of a bailee for hire (Moore «. Weatervelt, 27 IV. Y. 239).
    The burden of proof should in principle he the same as in an action against warehousemen for loss of goods deposited with them (Coleman ®. Livingston, 36 Superior Court R. 32; afterwards affirmed by court of appeals).
    Before Sedgwick and Speir, JJ.
    
      Decided June 5, 1876.
    Undoubtedly, as in the case last cited, if the defendants show by uncontradicted testimony, that the loss happened after the use of due care to prevent it, the court should direct a verdict for the defendants.
    In a case where proof does not show the manner of loss, proof of care on defendant’s part, to justify a direction for a verdict in his favor, must show affirmatively and exhaustively, that the care was used against the risk of loss of every kind, from the beginning to the end of the custody.
    
    In the case at bar, that proof was not given, and the court erred in directing a verdict for the defendants.
    There was such a conflict of evidence as to the care, that the question should have been submitted to the jury.
    The action was against the sheriff and one of his deputies, for the value of certain property seized by the sheriff, through his deputy, under an order of attachment against the property of one of the plaintiffs, a partner in a firm composed of the plaintiffs, and not returned to the plaintiffs after the attachment had been vacated, and also for damage to such of the property seized as was returned. ,
    The sheriff did no personal act in levying on, or in taking charge of the property. The deputy did all that was done under the process. The property levied upon was the stock in business of the plaintiffs and the fixtures in their store. The stock was clothing and materials for clothing. On December 24, 1873, the deputy seized all the goods at the store, and put one Hart in charge. The plaintiffs gave evidence to show that at this time, the stock was in good order and in a saleable condition. An inventory was forthwith taken ff the stock by the deputy. In the stock was a piece of velvet, of twenty or twenty-two yards; of the value óf more than three dollars and seventy-five cents a yard. While the deputy remained at the store, a clerk of the plaintiff's’ remained with him, to look after the interests of the plaintiff. On December 27, the parties in charge of the store, locked it up, and left, to take a n eal at an eating-house near by. They returned about half-past seven o’clock in the evening, and found that a fire had happened in the building, on the floor above the store. Water from the engines had come through the ceiling of the store, and dropped on a part of the stock. The plaintiffs, or one of them, in making proo of loss to the insurance company, had given his affidavit, that damage was done to two hundred and thirty-one vests, six hundred and twenty-nine pairs of pantaloons, and seven hundred and eighty-one coats, in the amount of two thousand eight hundred and sixty-two dollars. Appraisers of the loss had been appointed, by consent. One of them was a witness for plaintiff, on the trial. By him, it was shown that the water had damaged one hundred and five vests, three coats, and one hundred and seventy-seven pairs of pantaloons, in the amount of three hundred and ninety-three dollars, and the loss was- settled on this basis. At the time of the fire, a patrol had broken into the store, and removed the goods from the window to another part of the store. On January 8, the deputy began to remove the goods in carts. The plaintiffs’ witnesses swore, that it was raining when the goods were taken away, and that the sheriff’s men came in, and “took the goods up like rags, and fired them on the wagons anyway,” and “ that they just took the goods right up like hay, and chucked them right in the wagons.” The deputy sent the goods to an auction room, and there they remained until about January 24, 1874. The auctioneer made a list of the goods as he received them, and gave a receipt for them to the deputy. Neither this list, nor the receipt was produced on the trial. One of the plaintiffs testified, that in the auction room, the goods were lying in about twelve feet space, and “ was piled up to the ceiling just like rags, and with all kinds, stove pipes and all kinds of counters were laid on the top of it.” The plaintiffs received the goods from the auctioneer after the attachment was vacated, and evidence was given by them, to show that the goods came to no damage from them, in the removal from the auction room to their own store.
    In order to establish their claim, that a great number of coats, jackets, pairs of pantaloons and vests, were taken and not returned, evidence was given that the plaintiffs compared the number of articles received from the auction room, with lists contained in their own stock book. The books were not so verified on the trial, as to show, prima facie, that they set out the stock on hand, at the time of the levy. The plaintiff, therefore, failed to show that any goods taken were not returned, excepting the piece of velvet and a quantity of trimmings. Enough proof was given as to these not being returned, to call for a verdict of the jury on this point.
    Testimony was given for plaintiff, that the stock on its return was in a damaged state, being, in parts of it, soiled, torn and mussed; that it was not merchantable, and was lessened in value twenty-five or thirty per cent. One of the witnesses testified that the stock “was soiled, dirty, mussed up or jammed up, and some of the linings torn and some of the bindings also torn and dirty, and had the appearance of having been roughly handled, not taken care of; we thought that twenty-five per cent., was a very low estimate for the damage of the stock.”
    The defendants gave evidence that contradicted the plaintiff’s witnesses as to the care with which the goods were removed from the store, the state of the weather at that time, and the manner in which the goods were stored at the auction room. All persons who had taken part in the levy, in the making of the inventory, in the guarding of the goods, in their removal, and in their storing at the auction room were examined as witnesses, and gave evidence that they respectively acted with care and prudence in their conduct. No evidence was given tending to show that the piece of velvet referred to had ever been delivered to the auctioneers, nor did any evidence given account for the loss of the velvet.
    At the end of the testimony for the plaintiff, the judge dismissed the complaint as to the deputy on the ground that he was liable to the sheriff only, and not to the plaintiff, and at the end of the whole case the judge held that the defendants had shown affirmatively that they had used the required degree of care, in respect of the goods, and that there was no conflict, on that issue, to be submitted to the jury, and the judge directed the jury to find for defendant, Brennan, sheriff.
    
      Mr. Elliott, for the appellants.
    
      Mr. Green, for the respondents.
   By the Court.—Sedgwick, J.

In Waterbury v. Westervelt (9 N. Y. 604), Judge Dentó was of opinion, that in an action like the present, the sheriff and his deputy were jointly liable, although there had been no personal interference by the former. No doubt was made as to the liability of the deputy, although Judge Parker thought the evidence abundantly proved the personal interference of the sheriff. Judge Deeio sustained the recovery on the allegations of the complaint, that the defendants made knowingly an excessive levy, and that a portion of the goods remained in their hands unsold, which they converted to their own use, except a small part which they returned to the plaintiff in a damaged state. Upon the reasoning of Judge Denio, and the cases cited by him, I am of opinion that the deputy in this case was liable, if at all, with the sheriff, and that the judgment must be alike against the two.

I am of the opinion that the plaintiff wholly failed to show that any part of the stock taken by the sheriff was not returned, excepting there was proof, upon which to go to the jury, that the piece of velvet and bundle of trimmings had been taken, and not returned. The burden of proof was then placed upon the defendant, in case the jury should find that these articles had been taken and not returned, to account for the loss by showing that it had happened against the use by the defendants of the care of an owner (exercising ordinary precaution) of such goods, under like circumstances. The duty of the defendants was at least that of a bailee for hire (Moore v. Westervelt, 27 N. Y. 239). The burden of proof should in principle be the same as in action against warehousemen, for loss of goods deposited with them (Coleman v. Livingston, 36 Superior Ct. Rep. 32 ; afterwards affirmed in the court of appeals).

Undoubtedly, as in the case last cited, if the defendants show that the loss happened, after the use of due care to prevent it by uncontradicted and indisputable evidence, the court should direct a verdict for the defendants. In the case last cited, the court held that a verdict should have been' so directed. The peculiarity of that case, was that the evidence showed the manner of the loss beyond doubt; viz., by burglary. In the present case, the defendant’s evidence did not account for the manner of loss, but on the other hand, there was some appearance of denial by defendants that the articles had been taken by him. In a case where the proof does not show the manner of loss, proof of care on defendant’s part to justify a direction in his favor, must at least show exhaustively, that the care was used against the risk of loss of every kind, from the beginning to the end qf the custody. A relaxation, but for a few minutes, of strictness enjoined bylaw, where the loss might have happened, will be sufficient to leave the defendants responsible, in spite of ample proof of care at times, and in contingencies when ,the proof does not show the loss to have happened. In the present case, I do not think the exhaustive proof was given. The evidence was of a general kind, that care was used in keeping the goods from loss. The testimony in some instances was specific, but for the most part it referred to the conduct of the keepers, through spaces of time of greater or less duration. The keeper, the cartmen, and their assistants, gave testimony as to their own vigilance. The inferences to be drawn, were essentially unlike those to be drawn from testimony as to the construction and fastenings of buildings. In the present case, it was not matter of law that the witnesses did what they said they did, and without their general impeachment, the jury was bound to examine the weight of their evidence. An omission of duty might be from forgetfulness. The very same forgetfulness might be the cause of a witness not recalling the omission, or the facts that would show the omission. The jury was not bound by any testimony that, in its substance, was a matter of opinion. Yet necessarily, in the testimony of the witnesses, their opinion was mixed in their description of the facts. Beyond this the credibility of the witnesses was involved. To justify taking the construction of testimony from the jury, there must be absent the circumstances to which a jury look in determining if a witness is unbiassed. There was here a peculiar relation between the defendants, and some of the important witnesses which the jury would have been bound to look at. I do not consider the case as if the duty of the sheriff or the deputy was performed, in the exercise of ordinary diligence in selecting competent servants. This subject was not considered upon the trial, and, in fact, no proof was given as to the exercise of this kind of diligence. If such were the claim of defendants, I think the court could not have passed upon it as a question of law.

In looking at the proof as to the kind of care exercised against the risk of damage, I am of opinion that there was such a conflict as to the manner in which the goods were removed, the weather during the time of removal, and the manner in which they were stored at the auctioneer’s, that the case should have been submitted to the jury on this point. It does not appear that the damage done by the fire, could necessarily have accounted for the condition of the stock after it was returned. The plaintiff’s witnesses gave evidence that the loss from the fire was small. The plaintiff was at liberty to ask the jury to rely on this, even against his own sworn proof of loss under the policies of insurance, that the damage was large. There was a great deal of testimony to show that after the return, the stock was found damaged to twenty or thirty per cent, of its value. The plaintiff, and his witnesses, had sworn that the stock was a saleable one before the fire. They also swore, that in whatever they did to it, before it was found so damaged, they did nothing which injured it, or would account for its being injured. In kind, this proof was valid in favor of the plaintiff, as was the defendants’ evidence on the same points in the defendants’ favor. The aid of the jury should have been asked to settle this difference as to the facts. If the jury found that the goods were damaged when in the defendants’ custody, to a serious extent, that was an important fact in determining whether the defendants had used the care that was sworn to, on defendants’ part.

On the whole case, I think it would be best to have the jury pass upon the facts.

The judgment is, therefore, reversed, and a new trial granted, with costs to appellant, to abide events.

Speir, J., concurred.  