37 N.Y. St. Rep. 251

Charles H. Dyett, Assignee, Resp’t, v. Samuel P. Hyman et al., App’lts.

(New York Common Pleas, General Term,

Filed April 6, 1891.)

1. Attachment—Liability op indemnitobs

Indemnitors upon a bond given to the attaching officer, to hold him harmless against the consequences of a wrongful seizure and removal, are liable as trespassers for the full value of the property taken, jointly and severally, and cannot claim that because of a subsequent levy on the same property by others ivho shared in the proceeds, each should be held liable only to the extent of his profit in the wrong committed.

2. Evidence—Former adjudication.

In an action brought by an assignee for creditors, a judgment in a former action brought by the defendants to set aside the assignment, sustaining it, is admissible in favor of the plaintiff.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court in an action to recover damages for trespass de bonis asportatis.

Dyett & Einstein, for resp’t; A. C. Blumenstiel, for app’lts.

Bischoff, J.

That the indemnitors upon a bond given to the attaching officer to hold him harmless against the consequences of a wrongful seizure and removal of the property attached, are liable as trespassers for the full value of the property taken to the person aggrieved, though there be no other proof of participation in the taking or interference with the property, is a proposition so well established by authority as to admit of no dispute. Herring v. Hoppock, 15 N. Y., 409; Davis v. Newkirk, 5 Denio, 92; Root v. Chandler, 10 Wend., 110 ; Wall v. Osborn, 12 id., 39; Lovejoy v. Murray, 3 Wall., U. S., 1; Pool v. Ellison, 56 Hun, 108; 30 N. Y. State Rep., 135; Pozzoni v. Henderson, 2 E. D. Smith, 146; Posthoff v. Bawndahl, 43 Hun, 570; 6 N. Y. State Rep., 613; Posthoff v. Schreiber, 47 Hun, 593; 14 N. Y. State Rep., 897; Ball v. Loomis, 29 N. Y., 412.

The persons participating in the commission of the trespass are liable jointly and severally, and the omission to pursue one or more of them can be of no avail to those against whom the liability is sought to be enforced. Rose v. Oliver, 2 Johns., 365 ; Wehle v. Butler, 61 N. Y., 245; Lawson’s Rights, Remedies and Practice, vol. 3, § 1044, p. 1773, and cases cited.

It appeared upon the trial that the property for the wrongful seizure of which plaintiff complained was taken under three several attachments issued against the propertir of plaintiff’s assignor, two of which were issued at the instance of the defendant Hyman and the other at the instance of Louis Stroook and others, and that the defendants Hyman and Morris were two of the indemnitors upon the several bonds given to the sheriff upon such seizure. It also was shown that subsequent to that seizure the same property ivas levied upon at the instance of other alleged creditors who shared in the proceeds of its sale, and the defendants thereupon contended that the liability of each should be limited to the extent of his participation in the distribution of the avails of the property. *252The trial justice correctly ruled against the contention. It does not lie in the mouth of a number of joint tort feasors to say that each should be held liable only to the extent of his profit in the wrong committed, Williams v. Sheldon, 10 Wend., 654, and the subsequent levy under legal process upon the property seized can furnish no defense to the prior wrongful seizure. Hanmer v. Wilsey, 17 Wend., 91; Carpenter v. Dresser, 39 Am., 337. Posthoff v. Schreiber, 47 Hun, 593; 14 N. Y. State Rep., 897, cited by appellants, is not to the contrary. In that case the court ruled that the damage to the party aggrieved was complete when the original seizure was made, and that, therefore, the defendants who were subsequent attaching creditors, and not joint trespassers with the original takers, could only be held answerable to the extent of the remaining value of the property levied upon under their process.

The provisions of the Code of Civil Procedure (§§ 1419 and 1429) do not impair the right of a person wrongfully deprived of his property under legal process issued against the property of another to prosecute the indemnitors and all others concerned in the seizure as joint trespassers. The provisions referred to undertake no more than to allow the exoneration of the officer acting under legal process by a substitution of the indemnitors as defendants in his place if the person aggrieved has elected to sue the officer, and their effect should not be extended by implication. Hein v. Davidson, 96 N. Y., 175 ; Hayes v. Davidson, 98 id., 19.

There is nothing in the case on appeal before us to indicate that the record of the action of Hyman & Morris v. Dyett et al. was admitted in evidence bn plaintiff’s offer as conclusive upon the defendants on the question of the bonajides of the assignment. It was not incumbent upon plaintiff to repel the charge of fraudulent intent in the making of the assignment until it had been assailed by the defendants ; and the latter were not only not precluded from introducing all evidence offered by them tending to impeach the assignment, but did actually secure the admission of the testimony of several witnesses to that end.

The action to set the assignment aside was brought by Hyman and Morris individually, and they were prosecuted in this action in the same capacity. The question litigated in the equity action was whether or not the assignment was made with intent to hinder, delay, cheat and defraud the creditors of the assignor, and the determination therein adverse to the plaintiffs was certainly admissible against them in this action. Woods Practice, Evidence, pp. 751, 752; Doty v. Brown, 4 N. Y., 71; Gardner v. Buckbee, 3 Cowen, 120; White v. Coatsworth, 6 N. Y., 137; Demarest v. Darg, 32 id., 281; Cromwell v. Sac, 94 U. S., 4 Otto, 351-371.

This appeal being from the judgment only we can therefore review only the exceptions taken upon the trial; and the omission from the case of the testimony introduced by the defendants to impeach the assignment prevents us from saying that it was sufficient to warrant the submission of the question of the assign- or’s fraudulent intent to the jury. Hence we cannot say that the *253learned trial justice erred in his direction of a verdict for the plaintiff for the agreed value of the property admitted to have been taken.

We can discover no errors in the rulings of the trial justice, and the judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Dyett v. Hyman
37 N.Y. St. Rep. 251

Case Details

Dyett v. Hyman
Decision Date
Apr 6, 1891

37 N.Y. St. Rep. 251

New York



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