Chapman v. Morrill ( 1879 )

Barnard, P. J. :

The controversy in this case was as to ownership of personal property. The plaintiff recovered a judgment in the Queens County Court against one Stephen Cash. The. defendant, Cash, hired premises of the defendant, and at the time of the recovery of the judgment had growing crops thereon. The sheriff levied upon these crops on the 27th of September 1878. The defendant claims that he purchased the crops of Cash, the preceding •day, and that a bill of sale was given on the 27th of September, 1878. The plaintiff bought the property at a sale made by the sheriff, under the execution issued upon his judgment. In the notice of sale given by the sheriff, the execution under which the sheriff sold was not described. The notice was simply to the effect, that by virtue of an execution, the sheriff would sell certain described property therein mentioned, 5,000 head of cabbage, two acres of field corn, one-half acre sweet corn, one-half acre turnips, one-fourth acre of carrots, “ on the premises of Henry C. Morrill.”

I think the notice was a good legal notice of sale. The sheriff seized the goods of the defendant levied upon under the execution. The notice, the sheriff was required to give, is prescribed in 2 Revised Statutes, 290, section 21 [2d ed.], as follows :

“No sale of any goods or chattels shall be made by virtue of any execution, unless previous notice of such sale shall have been given for six days successively, by fastening up written or printed notices thereof, in three public places of the town, where such sale is to be had, specifying the time and place where the same is intended to be had.” No objection is made to the-notice, except that the name of the defendant in the execution is not given. The statute does not seem to require it. The notice is to be six •days ; it must describe the property to be sold under the execution, and it must state the time and place of the sale; all this was done. It was of no' importance to the public whether the execution debtor was named or not. The judge, therefore, erred in leaving to the jury the question whether the notice sufficiently described the execution under which the property was sold, and instructing them if it did not, that no title passed to plaintiff by his purchase at the sheriff’s sale.

The judgment should, therefore, be reversed, and a new trial granted in the county court, costs to abide event.

Dykman and Pratt, JJ., concurred.

Judgment reversed, new trial granted in county court, costs to abide event.