Averill v. Williams & Sage

4 Denio 295

• Court: New York Supreme Court
• Decided: May 15, 1847
• Status: Published

Opinion

By the Court, Beardsley, J.

When this case was formerly before us, we held that the defendants were not liable in this action merely because they were plaintiffs in the execution on which the sale was made, (1 Denio, 501;) and that point is not now in contest. A new fact however was shown on the last trial; for it appeared that the attorney for the plaintiffs in the execution was present at the sheriff’s sale, and that the bids made by S. S. Lyon for the plaintiffs were made under the direction and express authorization of said attorney. It was not shown that the attorney had any general or special authority beyond that of an ordinary attorney at law in prosecuting a suit to judgment and execution; and in that character it is plain that he was not authorized to bid for his clients, or to authorize any one else to bid for them. An attorney has very plenary power in the prosecution of a suit to judgment and execution, and in these respects his acts may bind and conclude his client. But no interference of his in directing what the sheriff shall sell on the execution, or in assuming to bid, or authorize another to bid, for his client, will make him in any manner responsible for his acts. What was done in this case by Chapin, the attorney, and by S. S. Lyon, who acted, as far as the case discloses, on the authority of the attorney alone, furnishes no evidence of a conversion by the defendants. Had it appeared that they subsequently assumed the control of the property struck off to them, or had in any other manner ratified what was so done in their name, a different question would have been presented. But no evidence was given to show that the property so sold by the sheriff had been interfered with by any person since' the sale. [The learned justice referred to the other testimony relied on to prove a conversion, which he held did not furnish any evidence upon that point, and concluded as follows.] Upon the whole it seems to me there was not such evidence given as should be allowed to maintain this action against either of the defendants. The plaintiff therefore should have been nonsuited on the trial.

Mew trial granted.