
    Mortimer Sullivan, Respondent, against Cornelius Farley, Appellant.
    (Decided June 5th, 1882.)
    A sheriff is not liable as a trespasser for levying an execution upon property exempt from levy, unless he knew that it was exempt or a claim for exemption was made to him by or on behalf of the execution debtor.
    Appeal from a district court in the City of New York.
    The facts are stated in the opinion.
    
      
      E. P. Wilder, for appellant.
    
      D. A. Spelissy, for respondent.
   Van Brunt, J.

Upon the argument of this appeal it was intimated that the case of Twinam v. Swart (4 Lans. 263), required a reversal of the judgment, unless the rule laid down in the above case was modified or controlled by the cases of Frost v. Mott (34 N. Y. 253), and Cantrell v. Connor (6 Daly 224). The reasons -requiring a claim of exemption from execution to be made by an execution debtor to the sheriff are so well stated in the case of Twinam v. Swart (supra), that it is not necessary to repeat them here, neither is it necessary to discuss the question, because such discussion would be but a mere repetition of the argument of the learned justice who wrote the opinion in tljat case. The cases of Frost v. Mott and Cantrell v. Connor, upon an examination of the same, do not conflict with the rule laid down in the case of Twinam v. Swart.

The most that can be deduced from the cases of Frost v. Mott and Cantrell v. Connor is, that where the sheriff knows that he is levying upon property which the statute exempts from execution, the execution debtor is not required to make the claim of exemption. It may' fairly be inferred that in both of these cases the Court found that the claim for exemption had been made, as in the statement of facts in the case of Frost v. Mott it is stated that the execution debtor claimed the property sued for as exempt, and in the case of Cantrell v. Connor there was positive evidence that the property sued for had been claimed by the execution debtor as exempt. It is true that there is an expression of opinion in that case that Frost v. Mott was an authority for the proposition that a failure to claim exemption would not justify or protect the sheriff in wrongfully removing and disposing of the goods by law exempt from levy and sale under legal process.

We are of opinion, therefore, that the cases of Frost v. Mott and Cantrell v. Connor are not in, conflict with the case of Twinam v. Swart, but may be reconciled with it; and that unless it is shown either that the sheriff knew that the property levied upon was .exempt from levy and sale under legal process, or a claim of exemption was made by or on behalf of the execution debtor to the sheriff, the sheriff is not a trespasser in levying upon property which upon the trial may be proved to be such, or which if the execution debtor had claimed exemption he would have had a right to have exempted from levy and sale.

Charles P. Daly, Ch. J., concurred.

Judgment reversed.  