Goodrich v. Bowe

Me Adam, J. My conclusions upon the legal propositions involved are as follows: 1. That the assignment to the plaintiff carried with it the cause of action for which the suit is brought (Bowdoin v. Colman, 6 Duer, 182 ; Gallardi v. Orser, 4 Bos. 107; Thomas v. Hubbell, 35 N. Y. 120; Wehle v. Spellman, 75 Id. 585; Parmlee v. Dann, 23 Barb. 461). 2. That the mortgage having eighteen months to run before the title of the mortgagee became absolute, the mortgagor had a leviable interest in the mortgaged property, which the sheriff ought to have sold to satisfy the execution in his hands (Hull v. Carnley, 11 N. Y. 501). 3. That the sheriff had no right to demand an indemnity before selling such interest. 4. That the offer to sell such right, title and interest .at the vestibule of the City Hall is no answer to the present action. He should have sold on the premises. At all events, the presence of the goods at the sale was indispensably necessary (3 R. S. 6 ed. 629, § 41; Crocker on Sheriffs, 2 ed. § 495, and cases cited; Stief v. Hart, 1 N. Y. 20). 5. That the alleged “claim of title” by the mortgagee, being founded exclusively on the mortgage, which on its face showed that the mortgagor had a [341] leviable interest in the property, gave the sheriff no;, jurisdiction * > try such question by a jury, and that the finding the sheriff’s jury of “ title in the claimant” did not under such circumstances warrant the sheriff in demanding a bond of indemnity, as a condition of selling the conceded interest of the mortgagor apparent on the face of the mortgage. The finding by the sheriff’§ jury could not be broader than the claim1 itself, and this, as before remarked, upon its face, admitted a leviable interest in. the mortgagor, which the sheriff was, as a matter of plain duty, bound to sell. He would have incurred no risk in so doing, and for his failure or neglect to sell he is liable for the damages which the creditor suffered in consequence. 6. The jury assessed the mortgagor’s usable interest at $162, the amount of the judgment. The evidence amply supports the value as found. 7. The mortgagee testified upon the trial that the mortgagor had his permission to carry on the business and sell off the stock, as the exigencies of trade required, and for his own benefit. Without discussing the legal effect (as to judgment creditors) of such an arrangement between mortgagor and mortgagee, it is apparent that such a privilege for eighteen months is one of substantial value. I have failed to discover that any injustice was done by the verdict, or that there was error in any of the rulings. Motion for a new trial denied.