Masten v. Webb

Per Curiam: The defendant moved for a new trial on two grounds: Fi/rst. That as Townsend was in possession the plaintiff could not maintain the' action. On this ground the learned justice properly denied the motion. Townsend was not in legal possession, but was only the clerk or servant of the plaintiffs. Second. That the action could not be maintained without a demand. On this ground the learned justice granted a new trial. In this we think he was in error. The property belonged to the plaintiffs and, as the learned justice had stated on the former branch of the motion, [92] Townsend had no leviable interest, and was only the servant or clerk of the plaintiffs, and they were entitled to immediate possession. The defendant therefore, by his levy, took property belonging to the plaintiffs and then being in their legal possession. Rawley v. Brown (18 Hun, 456) decided only the liability of the purchaser at a sheriff’s sale, not the liability of the sheriff. In Williams v. Lowndes (1 Hall, 579) the court held that the goods on which the sheriff neglected to levy were in fact the property of the judgment debtor, and that the assignment by the judgment debtor was fraudulent and void. Any remarks outside of that question were obiter. Shumway v. Rutter (8 Pick., 443) was the case where a stranger’s goods where mingled with those of the judgment debtor, so that the officer was unable to distinguish them, and it was his duty to levy on those of the debtor. In the present case, according to the finding of the jury, it was not his duty to levy on any of these goods. We think that several cases in this State show that the sheriff who levies on goods, not the property of the judgment debtor, is a trespasser. (Allen v. Crary, 10 Wend., 349; Chapman v. Andrews, 3 id., 242; Alvord v. Haynes, 20 Sup. Ct. N. Y., 26.) And that a demand is not necessary. (Stillman v. Squire, 1 Denio, 327.) The order granting a new trial should be reversed, with costs. Present — Learned, P. J., Boardman and Bookes, JJ. Order reversed, with costs.