Blair v. Flack
| Decision Date | 16 January 1894 |
| Citation | 35 N.E. 941,141 N.Y. 53 |
| Parties | BLAIR et al. v. FLACK, Sheriff. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, first department.
Action by Alfred A. Blair and Albert Hellett against James A. Flack, late sheriff of the city and county of New York, for a false return of nulla bona on an execution. From a judgment of the general term (21 N. Y. Supp. 754) affirming a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Affirmed.
David Tim, (Abram Kling, of counsel,) for appellant.
George H. Fletcher, (Herbert T. Ketcham, of counsel,) for respondents.
The plaintiffs obtained an attachment against the property of the Illustrated News Company, which was placed in the hands of the defendant as sheriff, and he, by virtue thereof, levied upon certain property as belonging to the news company. Mr. Adams claimed that the property belonged to him, and, by an arrangement between him, Mr. Costa, a clerk of one of the sheriff's deputies, and the attorney of the plaintiffs, he (Adams) gave a check to Costa to take the place of the property attached, and that property was then delivered to Adams, and disposed of by him. The sheriff drew the money on the check, and Adams, claiming that the property attached belonged to him, and that the check simply took the place of it, commenced an action against the sheriff to recover the money, and he recovered judgment, which was paid by the sheriff. These plaintiffs were not parties to that action, and therefore were not bound by the judgment recovered therein. After the plaintiffs had recovered judgment in the action in which the attachment was issued, and had failed to collect the amount thereof by a proper execution issued thereon, they commenced this action against the sheriff, claiming that the check was deposited by Adams as absolute security for the payment of any judgment they should recover. Upon the trial they gave evidence tending to establish their claim that the check was deposited for the purpose alleged by them, and Costa and Adams testified, on behalf of the defendant, that it was deposited simply to take the place of, and to stand for, the property attached. The trial judge charged the jury that, if the arrangement as to the check was as claimed by the plaintiffs, they were entitled to recover, but that, if it was as claimed by the defendant, he was entitled to their verdict. The charge was not complained of or excepted to, and the jury rendered a verdict in favor of the plaintiffs.
The defendant, upon this appeal, alleges several errors, for which he claims the judgment should be reversed.
1. It is claimed that the sheriff was not liable for the contract made by Costa, a clerk in the employment of a deputy sheriff, who was not known to the sheriff, and was in no way authorized to represent him. The answer to this is that no such point was taken upon the trial. It could have been raised by exception to the charge to the jury, or by request to charge; but it was not, and it was not mentioned as one of the grounds for a nonsuit. There was absolutely no claim upon the trial that Costa was not authorized to represent and bind the sheriff by the arrangement he made as to the property attached. While the plaintiffs' attorney was under examination as a witness, and...
To continue reading
Request your trial
-
Marlatte v. Weickgenant
...116 N. Y. 606, 614,23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Sterrett v. Nat. Bank, 122 N. Y. 659, 25 N. E. 913;Blair v. Flack, 141 N. Y. 53, 56,35 N. E. 941;Oliphant v. burns, 146 N. Y. 218, 236,40 N. E. 480;Reich v. Cochrane, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St.......
-
Reich v. Cochran
...considered for the first time on appeal. Oatman v. Taylor, 29 N. Y. 649, 662;Sterrett v. Bank, 122 N. Y. 659,26 N. E. 913;Blair v. Flack, 141 N. Y. 53, 56,35 N. E. 941;Oliphant v. Burns, 146 N. Y. 218, 236,40 N. E. 980;Adams v. Bank, 116 N. Y. 606, 614,23 N. E. 7. We think the judgment of t......
-
Haviland v. Willets
......Bank v. Roop, 48 N. Y. 298;Blair v. Wait, 69 N. Y. 113;Viele v. Judson, 82 N. Y. 32; Queen v. Lords of the Treasury, 16 Q. B. 357; Brisbane v. Dacres, 5 Taunt. 144. Indeed, if the ......
-
Bliss v. Sickles
...will assume that proof of the omitted fact was waived, or that the fact as to which the proof was defective was conceded. Blair v. Flack, 141 N. Y. 56, 35 N. E. 941;Reeder v. Sayre, 70 N. Y. 190. The other questions in the case were considered by the general term, and none of them require a......