
    George J. Axt et al., Resp’ts, v. John F. Shankey, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Conversion—Title to personal property.
    Adam Axt being indebted for borrowed money and wages to plaintiffs, who were his sons and son-in-law, gave them a bill of sale of his business and machinery, which was filed in the clerk’s office, and they thereafter continued the business, employing Adam Axt at stipulated wages. _ In an action against the sheriff for conversion in levying upon and selling the machinery as the property of Adam Axt, the foregoing facts were shown, and Adam Axt disclaimed any intent to defraud creditors in making the transfer. Seld, that a judgment in favor of plaintiffs was warranted by the evidence.
    Appeal from judgment in favor of plaintiffs, entered on the report of a referee.
    
      This action was brought to recover damages from the defendant for an alleged wrongful levy and sale under an execution issued to him, as sheriff of Rockland county, upon a judgment recovered by John K. Kreig and others against one Adam Axt. The trial was had before a referee. The plaintiffs, who are two of the sons and a son-in-law of said Adam Axt, claimed to be the owners of the property levied upon and sold, by virtue of a bill of sale executed by said Adam Axt to them, dated November 12, 1888. The judgment upon which such execution was issued was recovered December 22, 1888 ; the execution was issued to the sheriff on January 28, 1889; the levy made on January 29th, and the sale made February 25, 1889.
    The evidence showed that the said Adam Axt, for a number of years previous to the 12th of November, 1888, had been in the business of manufacturing and selling shoes at New City, Rock-land county. That the property, for the taking of which this action is brought, had for a number of years belonged to. him and was used by him in his said business ; that for several years, immediately prior to that time, the plaintiffs had been working for him at stated wages, and that he was indebted to them, collectively, in the sum of about $3,000, and that he owed other parties debts at the same time, and was practically unable to pay all his debts in full and carry on his business. That a few days prior to the 12th day of November, 1888, Adam Axt and the plaintiffs entered into negotiations for the sale of said business and said property to the plaintiffs, in consideration of said collective debt due by him to them; that said sale was consummated on or about the 12th day of November, 1888, and that said Adam Axt thereupon delivered said property, etc., with a properly executed bill of sale, 'in writing, over to them, and that the plaintiffs, thereupon, took possession of the" property so sold, assumed the rent of the building in which said business was carried on, and have ever since paid such rent, carried on such business in their own name, have been the sole owners of said property, and had said Adam Axt in their employ, working for them in their said business at fixed and stipulated wages.
    These facts are not contradicted, but defendant introduced evidence to show that goods sometimes came addressed to Adam Axt, and that he promised to pay the freight bills.
    The referee found that plaintiffs purchased the goods in good faith and for a valuable consideration; that they were the lawful owners thereof, and that the taking and converting of the same by the defendant was unlawful, and directed judgment for plaintiffs.
    
      Geo. W. Weiant, for app’lt; Frank Comesky, for resp’ts.
   Dykman, J.

This is an action for the recovery of damages for the wrongful conversion of personal property. The defendant, as sheriff of Rockland county, seized the property in question, and sold the same as the property of Adam Axt, under an execution which he held against his property.

The levy and sale under the execution was made upon the theory that the property belonged to Adam Axt, the defendant in the execution, but the referee before whom, the action was tried has found against the defendant, and the testimony sustains the finding.

As there were no errors committed on the trial, the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  