Deutsch v. Reilly ( 1878 )

Charles P. Daly, Chief Justice.

The question in this case is a very plain one. The attachment was an ample protection to the sheriff as against the defendant in the attach ment whether it was irregularly issued or not, for the sheriff is bound to obey the mandate of the court, and the process protects him. But it is no protection for taking the property of another person than the defendant; for that, he was not commanded to do by the process. He was simply commanded to take the property of the defendant, and if he takes the property of a stranger he must answer to the stranger, the same as any other wrong-doer. (Decker v. Bryant, 7 Barb. 182 ; Frost v. Willard, 9 id. 440 ; Sheldon v. Van Buskirk, 2 N. Y. 477 ; Bullis v. Montgomery, 50 N. Y. 352.) In Horton v. Hendershot (1 Hill, 119), the case upon which the general term relies, no such question existed as the one presented here; for there the constable against whom the action was brought took the property of the defendant in the attachment, as he was commanded by it to do; and the court held that the attachment, though void, protected the officer who, as he was bound to do, had simply obeyed its mandate. No such question, therefore, was presented or passed upon, as taking the property of a party who was not the defendant in the attachment. Where that is done it is wholly immaterial whether the attachment was void or valid; for in neither case does it afford any protection to the officer for doing an act which he was not, by the process, commanded to do.

If the property, although belonging to the plaintiff, had been in the possession of the defendant in the attachment when it was taken, then, as this was an action of replevin, a question would have arisen as to whether the action could be maintained; for it has been held that, where property levied upon by execution was, at the time of the levy, in the possession of the defendant in the execution, replevin will not lie against the sheriff for property thus taken, as in the custody of the law (Hall v. Tuttle, 2 Wend. 475); but if taken out of the possession of. one not the defendant in the execution, replevin will lie, for it is not then in the custody of the law. (Clark v. Skinner, 20 Johns. 465.)

The property in this case, when it was taken by the sheriff, was not in the possession of Friedman, the defendant in the attachment, but in the possession of the plaintiff, to whom Friedman had sold it before the attachment issued, and replevin would consequently lie to recover it. The' defendant offered to show that the sale by Friedman to the plaintiff was fraudulent, but this he was not enabled to do; for, as between Friedman and the plaintiff, the transfer was valid, and the plaintiffs in the attachment, not being judgment creditors, were not in a position to impeach the transaction. The verdict for the plaintiff was right ; and this being an appeal from an order granting a new trial, the decision of the general term should be reversed with the order granting a new trial, and the judgment rendered for the plaintiff affirmed.

YAH Hoeseh, J., concurred.

Order of the general term of the Marine Court granting a new trial reversed, and judgment of the trial term affirmed, with costs.^*

* Affirmed by the Court of Appeals.