Adams v. Savery House Hotel Co.

Dodge, J. Should it be conceded, as the appellant contends, on authority of Wintringham v. Lafoy, 7 Cow. 735, that a conversion was complete upon the mere levy of the .attachment, still that conversion was committed by the con [111] stable. There is no evidence that the defendant or the defendant’s attorneys instructed the constable to levy on the specific property claimed to belong to, and be in the possession of, the plaintiff. There is, indeed, no evidence as to how the writ of attachment came to the constable’s hands; but, if it were conceded that it so came, to his hands from either the defendant or its attorneys, still from that act alone no liability for the conversion would be cast upon the defendant. The delivery of the writ would authorize the execution of it only by levy upon the property of the debtors named therein, not upon the property of others. Drake, Attachment (7th ed.), § 196; Welsh v. Cochran, 63 N. Y. 181; Clark v. Woodruff, 83 N. Y. 518, 525; Bowe v. Wilkins, 105 N. Y. 322, 331; Russell v. Walker, 150 Mass. 531. It is doubtless true that, if the constable do levy upon the property of another, the plaintiff may be liable therefor if he instigate such levy or ratify it with knowledge; but the record is barren of evidence of any act whatever, by the defendant in this action or its attorneys, either before or after the levy was made. True, counsel contends that some inference of approval and co-operation may be drawn from the fact that defendant’s attorneys witnessed, and one of them, as notary, took the verification of, the release bond; but even that fact does not appear. Nowhere in the record is it .shown that the same persons who now appear as attorneys for the defendant in this action appeared or acted for it in "the attachment proceedings, and we cannot accept -the assertion now made by appellant’s counsel, that the M. M. Riley and Charles A. Orth who witnessed the release bond were attorneys for the Savery House Hotel Company in that proceeding, as a substitute for evidence on that subject, even if that fact were material. In such state of the evidence, no recovery as against the defendant in this action could have been justified, and the judgment of nonsuit was proper. By the Court.— Judgment affirmed.