Brooks v. Hathaway

15 N.Y. Sup. Ct. 290

• Court: New York Supreme Court
• Decided: September 15, 1876
• Status: Published

Opinion

LeaeNed, P. J.:

The plaintiff knew of the levy before March tenth; at least the jury might have so found. There was some evidence, too, that shortly after that day he made arrangements to have the property sold before May thirteenth, to which time the deputy sheriff had postponed the sale. The claim that the property was exempt was first made about April fourteenth, more than a month after knowledge of the levy.

Where the judgment debtor has other property, apparently exempt, or which might be exempt, under this act, he must within a reasonable time after knowledge of the levy, make bis election, and give notice to the officer that he claims as exempt the property levied upon. (Seaman v. Luce, 23 Barb., 240; to the same effect is Smith v. Slade, 57 Barb., 641; and substantially Twinam v. Swart, 4 Lans., 263.)

Nothing in Wilcox v. Hawley (31 N. Y., 655) conflicts with this. There were not, in that case, two or more teams belonging to the debtor, any one of which he -might elect to consider exempt. And when a judgment debtor has several teams and wagons, one of which has been levied upon to his knowledge, it would be unreasonable that he should wait for over a month, disposing, meantime, of his other wagons and teams, and then, for the first time, assert that this was his exempt wagon.

Other questions were raised which we need not pass upon. We think it was erroneous to charge, as matter of law, that the plaintiff was entitled to recover, and to refuse to submit the question whether the length of time which had elapsed was not sufficient to prevent a recovery.

It is not necessary to say whether the delay of a month, unexplained, can be reasonable.

A new trial is granted, costs to abide the event.

Present — LeaeNed, P. J., Bocees and BoaetjMAN, JJ.

New trial granted, costs to abide event.