Freeman v. Grant

• Decision Date: 08 March 1892
• Citation: 132 N.Y. 22,30 N.E. 247
• Parties: FREEMAN v. GRANT, Sheriff.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 22

30 N.E. 247

FREEMAN

v.GRANT, Sheriff.

Court of Appeals of New York, Second Division.

March 8, 1892.

Appeal from supreme court, general term, first department.

Action by John C. Freeman, as receiver of Kaughran & Co., against Hugh J. Grant, sheriff of the city and county of New York, for the conversion of certain goods. From a judgment of the general term affirming a judgment of dismissal at the circuit, plaintiff appeals. Affirmed.

John B. Greene, for appellant.

Wales F. Severance, for respondent.

PARKER, J.

The complaint alleged the making of a general assignment for the benefit of creditors by the firm of Kaughran & Barrett to Miles O'Brien; an acceptance of the trust and the taking possession of the assigned property by the assignee; the plaintiff's subsequent appointment and qualification as receiver of the estate of Kaughran & Barrett, and the delivery of possession thereof by Miles O'Brien to him pursuant to the order of the court. It further averred that during the time said assigned property was in the possession of O'Brien, the assignee, the defendant in this action, as sheriff of the city and county of New York, wrongfully and unlawfully took from the possession of said O'Brien, and carried away, large quantities of said goods and property so held and owned by said O'Brien as such assignee, of the value of $19,385.12, against the protest of said assignee, and converted the said property to his own use, to the damage of the said assigned estate and the plaintiff in the above amount. The answer put in issue the allegations of the complaint, and by appropriate averments justified the acts and things done by the defendant as being in the line of his duty as sheriff.

The evidence adduced on the trial failed to support the allegations of the complaint respecting the wrongful taking of any goods from the possession of the assignee by the defendant, and its admission was objected to by defendant's counsel on the ground that it was not material or relevant to the issue. The objection was not sustained; and, from the testimony resulting, it appears that prior to the execution of the assignment the defendant, as sheriff, levied upon and took possession of certain goods belonging to Kaughran & Barrett under two executions aggregating about $40,000, and that a subsequent sale of part of the goods under such process resulted in a surplus of $10,804.44. While the sheriff was in possession of the property levied on, and subsequent to the assignment and the assignee's acceptance of the trust, the defendant received other executions, aggregating about $19,000, and he asserted to the assignee the right to sell a sufficient quantity of the goods remaining in the store to secure the balance required to satisfy such executions. Without conceding the sheriff's position to be correct, the assignee, believing, as it is alleged, that the assigned estate would be benefited by a sale conducted by him rather than the sheriff, suggested a plan which he intended should permit him to take possession of the goods and sell them, and at the same time preserve for the benefit of the assigned estate such sum, of about $19,000, provided the possession of the sheriff should prove to be without support in law. The assignee's proposals ripened into an arrangement by which the sheriff was permitted to retain the surplus, which exceeded $10,000; and in addition the assignee paid over to him about $9,000, making total moneys then in the hands of the sheriff equal to the amount due on the executions which he had received subsequent to the assignment, but under which he had levied on goods forming a part of the assigned estate. The assignee protested against the defendant's claim of right to sell the goods upon which he had levied, and insisted, in doing that which he did, he did not intend to relinquish the claim that the estate was entitled to the possession of the goods then in the store; that the money was intended by him as a substitute for the goods upon which the sheriff had levied, and was a deposit made for the purpose of procuring a release from the levy. Immediately thereafter the sheriff released the goods from the levy, and the assignee took possession, since which time the defendant has in no way interfered with any portion of the assigned estate. It is apparent, therefore, that the allegations of conversion of goods had no support in evidence; for those which the defendant disposed of, and caused to be removed, were rightfully sold under executions issued and levied before the assignment, and the legality of his action in that respect is not controverted.

But the plaintiff insists that there was a conversion of the surplus by the defendant, that his complaint was broad enough to embrace it, and therefore the dismissal of his complaint was error. While the surplus came properly and lawfully into the possession of the sheriff, pursuant to the sale under executions rightfully levied, still, after their satisfaction, he had no right to retain it, as it formed a part of the assigned estate; and, had the assignee demanded it, its continued retention by the defendant would have been wrongful,...