Armstrong v. Dubois

Mason, J. When the plaintiff’s evidence was in, there can be no doubt his case was made out. He was entitled to recover. The evidence showed, that the defendant having his execution in the hands of a deputy of the sheriff, went in company with such deputy, and his attorney in the suit and execution, Van Pelt, to the house of the plaintiff. Some one of them pushed open the door and the three entered the house. The deputy showed the plaintiff the execution and told him he had come to take possession of the property. The execution was in favor of Dubois and. against the plaintiff. The sheriff told this in the presence of Dubois. Armstrong, the plaintiff, asked the deputy to release his exempt property, and the deputy referred him to Dubois as the principal. Armstrong then made a request of Dubois, and Dubois referred him to his attorney, Yan Pelt, and Armstrong then asked Yan Pelt to release his exempt furniture and clothing; and Yan Pelt replied that he should, release nothing, but would sell him out neck and heels, and ordered the sheriff to keep possession of the property. The sheriff obeyed the instructions. The defendant, Dubois, heard all this, but did not personally interfere further by word or deed. He remained silent and made no reply, and must be held to have sanctioned and approved what his attorney, Yan Pelt, said and did. • This was enough to make him liable. Any one [297] who unlawfully intermeddles with another’s goods, although there be no manual interference therewith, as exercising an authority over them in defiance or exclusion of the owner, is liable for a convérsion. (Cow. Trea. §§ 566, 4th ed. by Tracy, 1856.) The deputy sheriff is the agent of the plaintiff in seizing the property, and when the plaintiff directs or is present with his attorney, and allows him to do so, and refers the officer to him for directions, and the attorney gives them in his presence, it is precisely the same as if the plaintiff gave them himself, for he must be deemed to have sanctioned and approved the acts of his attorney. (Stewart v. Wells, 6 Barb. 79.) He is responsible for the directions and acts of his attorney (Newberry v. Lee, 3 Hill, 623), and the rule seems to be, that wherein the attorney conducts the suit in such a way as to be liable to an action of trespass himself, his client is also liable. (Barker v. Braham, 3 Wils. 368, 376; Bates v. Pelling, 6 Barn. & Cres. 38; Brown v. Feeter, 7 Wend. 301; 3 Hill, 525 ; Leigh’s Nisi Prius, 1479.) The question, whether here was evidence of conversion against the defendant, certainly should have been submitted to the jury, for where the evidence of a conversion is slight, the jury are proper judges of the sufficiency thereof (Harger, 4 Watt, 418; Leigh’s Nisi Prius, 1479.) The only remaining question is, -whether the stipulation put in evidence by the defendant, contains admissions which take away the plaintiff’s case, and deprive the plaintiff of his casue of action.. It is proper to consider in this connection the circumstances under which this stipulation wras given. The defendants made a motion to transfer this cause of action to the Superior Court, and to change the place of trial to the county of Westchester, on the ground of the convenience of witnesses, and to obviate said motion the plaintiff’s attorney gave this stipulation, in which the plaintiff agreed to admit on the trial— 1. That the sheriff received no directions, instructions, or communications from this defendant personally, in reference to the levy or sale under said executions, or either of them. [298] 2. That the said William P. Little, as such special deputy, levied upon and sold the goods, under the said two executions, of this defendant and said Ackerman and Deyo, without having received any directions or instructions so to do from this defendant personally. 3. That this defendant took no part in this said levy and sale, and had no portion of the proceeds of the sale personally. There is an affirmation, contained in brackets, at the bottom of each of said, three admissions, that no implication should be drawn from the form of said admissions; that the defendant had given such direction and instruction to said deputy through his attorney, agent, or any other person; or that the defendant had done, received or suffered any of the things named in the third clause, by any person on his behalf. These negative affirmations, embraced in brackets, at the end of each clause of the stipulation, make no other claim and can have no other than to repel any implications being drawn from the stipulation itself against' the defendant as to any of the things therein referred to, and could never have been intended to deprive the plaintiff of the right .to make proof in regard to them. I do not think this stipulation should be held to overthrow the plaintiff’s case made by his proof. All-there is in the first two clauses of the stipulation is an admis-sion that, personally, the defendant did not give any directions or instructions to the deputy in reference to the said levy and sale. This is quite consistent with the case made by the plaintiff’s evidence. He did not give any directions or instructions, personally, but his attorney did, in his presence, and he, by his silence, approved it. And I cannot regard the admission in the third clause as necessarily admitting away the plaintiff’s case. The admission is, first, that the defendant took no part in the said levy and sale. This may all be true, and yet the plaintiff’s case made by his evidence be true. Very likely the defendant did not take any part in the levy or sale. The evidence does not show when the levy or sale was made. He may have done just what the plaintiff’s evidence proves [299] he did, and yet not have taken any part in the levy or sale. He was asked to release from the levy the plaintiff’s exempt property, and turned the plaintiff over to his attorney, "Van Pelt. This, certainly, was not taking part in the levy, and there is no evidence that he was present or took any part in the sale. Hor is there any pretense in the case that he, personally, had any portion of the goods, or that he had received any of the proceeds of the sale. His attorney may have them. At any rate it is quite immaterial what has become of them. The judgment should be reversed and a new trial granted.