Rhoads v. Woods , 1864 N.Y. App. Div. LEXIS 39 ( 1864 )

By the Court, Leonard, J.

1. The referee has found that the defendant was in possession of the vessel by virtue of the attachments in his hands as deputy sheriff, at the time she was taken out of the jurisdiction of the state of Maine, on the 13th of November, 1858. The evidence fully supports the facts so found. The sheriff acquired a lien by virtue of the levy under the attachments, and that constituted a qualified or special title. He was thereby authorized to take and hold possession until the demands were paid for which the attachments were issued, or until judgment and a sale of the property seized. The^assertion of that title against a wrongdoer in the state of New York cannot be considered as an attempt to execute the process of another state -within our borders.

The temporary absence of the keeper or person in charge for the sheriff in the state of Maine without leave, was not a relinquishment of custody. The act of the master in “unmooring the vessel and taking her out of the bailiwick of the sheriff was a misdemeanor; probably under the laws of the state of Maine it was a felony; the owners acquired no legal right thereby to detain the vessel from the sheriff.

The title of a foreign assignee in bankruptcy, or in invitum, to personal property, is admitted here as against the bankrupt or insolvent. (Holmes v. Remsen, 20 John. 229. Story’s Confl. L. §§ 410 to 420, and notes. 2 Kent’s Com. 406, and notes.)

The same principles are applicable here to support the special title of the sheriff acquired under the process and laws of another state, as against any -wrongdoer, or against the defendant in the process under which the sheriff seized the property. The exceptions to the report in this respect are not well taken.

2. The plaintiffs except to the report because the referee did not find that the defendant took possession of the vessel at New York by violence. There is no evidence in the case of any violence, in this respect. The referee has found that the defendant repossessed himself of the vessel about the 12th of April, 1859, at New York. The evidence is that the officers of the vessel were arrested and taken to prison, and then the defendant took possession. This was not a voluntary-relinquishment of the vessel to the defendant. There is no evidence, however, that the defendant caused the arrest. If the defendant regained possession without fraud or force, there was no breach of the peace, and no violation of the laws of this state, and the possession of the defendant cannot be disturbed. It would have been eminently proper for the defendant to have sought the protection of our laws in respect to his title. The owners or claimants in possession here might have desired to insist that the courts in Maine had not jurisdiction to grant the attachments; the process under which the levy was made might have been void; or the debt for which it was issued might have been paid. There is no exception to the report, and no evidence on the part of the plaintiffs to support one, in respect to any fraud or violence by the defendant to repossess himself of the vessel. The report cannot be disturbed on this ground.

3. The plaintiffs also except that the referee has not found that the plaintiffs offered to pay, and tendered to the defendant all his claim, costs, and charges against the vessel. The evidence is that the plaintiffs offered to pay all just claims and legal costs, and the defendant required them to pay $2500, in order to discharge the vessel. The referee has not found what was the amount of the defendant’s lien against the vessel at this time; nor whether the plaintiffs offered to pay the amount due; nor what demand the defendant made in this respect. The aggregate of the demands claimed by the attachments in the defendant’s hands indicate that he included in the sum which he required the plaintiffs to pay about $500, for expenses incurred in regaining possession. It may be that the defendant required the plaintiffs to pay more than he could lawfully claim.

A reasonable sum for the expenses of regaining possession followed the lien of the sheriff, as an incident to the performance of his duty, and to that extent he might insist upon being paid, if he acquired possession here in a lawful manner. Whether the amount claimed for expenses was a legitimata and reasonable sum for such expenses the referee has not found, and the evidence does not afford him the means of deciding. The offer of the plaintiffs amounted to nothing definite ; they made no tender. There is no' exception on this ground, that can be "maintained.

4. The plaintiffs also except that the referee should have found for the defendant only the amount of his claim and costs. The action is replevin. The referee has assessed the value of the vessel at $10,000, and given judgment for the return thereof to the defendant, or if such return cannot be made, then for the said value. This is erroneous. Where the interest of the party entitled tó the possession is of a limited nature, less than the actual value of the property replevied, the practice has long prevailed to direct the jury to asesss the value as against the actual owner only at a sum which would be equivalent to such limited interest. This practice was * adopted under the provisions of the revised statutes, prior to the code, to avoid circuity of action, and it has since continued under the code. The provision of the revised statutes was similar to section 277 of the code in- respect to the assessment of the value of the property replevied. It has been held in several cases that the provision of the revised statutes, in respect to assessing the value, must be so construed as to cover only the value of the special or limited interest of the prevailing party in an action between the actual owner and a party having a limited interest. (De Witt v. Morris, 13 Wend. 496, 499. Russell v. Butterfield, 21 id. 300.) The code, section 277, must be construed in the same manner. (Alt v. Weidenberg, 6 Bosw. 178.) This rule of construction is necessary and just.

It would be indefensible to allow the defendant in this action to recover $10,000 against the plaintiffs. Ho such sum is required to indemnify him. We might reduce the sum to the proper amount, but there is no evidence, and no fact found by the referee which will enable us to fix the precise sum which the defendant ought to recover.

[New York General Term, May 2, 1864.

The judgment should be reversed, and the case sent back to the referee for a new trial, with costs to abide the event.

Leonard, Clerke and Sutherland, Justices.]