Glassner v. Wheaton

2 E.D. Smith 352

• Court: New York Court of Common Pleas
• Decided: January 15, 1854
• Status: Published

Opinion

By the Court. Woodruff, J.

It appears, by the evidence, that one Stuart had made a wagon for the assignor of the plaintiff, D. Hamel, for which he was to receive $75 and another wagon.

Upon the issuing of an execution in favor of the defendants against Hamel, a levy was made upon this wagon. As between the defendants and Stuart, neither the defendants nor the officer had any right to take the wagon from the possession of Stuart, without his consent. He had a lien upon it for the price which he was entitled to receive therefor. The defendants had, however, a righto sell the wagon, subject to Stuart’s lien, and might have required Stuart to yield, so far as to suffer the wagon to be exposed to sale in that manner. • -

So, if Stuart was willing to give up the possession to the officer, the wagon might be removed by the latter and sold. And as between the defendants and Hamel, the possession of the defendants (to whom the temporary custody of the wagon, prior to the sale, appears to have been committed) . was lawful.

But if the defendants thought proper to accept payment of the judgment, and agree thereupon .to return the wagon to Stuart, their right to proceed to a sale was gone, and upon such sale .they were liable as for a conversion..

Nor after such a sale was any demand necessary. Regarding their possession before the sale as lawful, they could not, without a demand, have been proceeded against in this action; but a sale after payment of the judgment was an actual conversion, and where there is an actual conversion no demand is necessary. The result is, that if Hamel had himself been plaintiff' herein, his right of action, after payment of the j udgment, was complete, although it may be true that he could recover no more than the value of his interest in the wagon.

No injustice then is done to the defendants; the doubt is, whether the proof does not show that the interest of Hamel was worth $70, instead of $30, the amount allowed as damages by the court helew.

Without inquiring into the effect of a transfer by Hamel to the plaintiff, on the 4th October, the day before the execution was issued, it is sufficient to say, that even though fraudulent .as against these defendants, it was good as against Hamel and all other persons, not being creditors of Hamel, and therefore, upon the payment of the judgment, the plaintiff was entitled to all of Hamel’s interest in the wagon.

The defendants cannot complain of the judgment; and although it is doubtfulwhether the court below ought not to have awarded a largePsum, yet, as the plaintiff has not appealed, we cannot award a recovery of a larger amount.

The judgment should be affirmed,