Pico v. Kalisher

Sharpstein, J.: This judgment must be reversed. The evidence shows conclusively that the property was taken by the defendants from the possession of plaintiff’s assignors, but the Court finds that it was not. There was some evidence admitted which tended to prove that the property was taken by virtue of an attachment or execution, although none of the defendants pleaded that it was so taken. They simply denied the taking. If the defendants, or any of them, had alleged that the taking was by virtue of an attachment or execution, the judgment would have to be reversed for want of a finding upon that issue. It is unnecessary to state that the defendants are in no better position now than they would be if they had justified in their answer their taking under an attachment or execution. The finding that there was no taking of the property by the defendants is clearly erroneous. If they lawfully took it, and the Court based its judgment upon that ground, the Court should have so found. Under the pleadings, no evidence except as to the ownership of the property and the taking thereof, Was admissible. Some evidence, tending to prove a justification, was admitted against the plaintiff’s objections, but his counsel, for some reason, failed to have any exceptions to those rulings noted. Judgment reversed, and cause remanded for a new trial. Thornton, J., concurred. Myriok, J., concurred in the judgment.