Hayes v. Davidson

15 Abb. N. Cas. 85

• Court: New York Supreme Court
• Decided: January 15, 1885
• Status: Published

Opinions

Davis, P. J.

Ordinarily I should be of opinion that a sheriff who is sued for taking on process a stock of goods from the possession of an assignee, and removing them from his possession, is not entitled, when sued by such assignee, to demand a bill of particulars of the items of the stock of goods so seized and taken. Presumptively his possession of them would be held sufficient to give him full knowledge of what they consist, and a better opportunity to know their items than the assignee in trust from whom they have been taken. In this case a part of the stock was sold by the sheriff, and another part returned by consent to the assignee. Reasonable diligence would of course have enabled the sheriff to know what part and how much of the stock was sold, and as to that part he should be in better position to know the particulars than the assignee can be presumed to be. But as to the items returned to the assignee, if such return were in gross of a remaining bulk, the assignee who received them ought to be in better position to know the items than the sheriff. "Upon the facts appearing in the affidavits, I think the order ought to be so modified as to limit the bill of particulars to the items returned to the plaintiff, so that the sheriff may be relieved from the necessity of proving those items as part of his defense, and his liability in respect thereof be limited to such damages as the taking, withholding and returning, with acceptance by plaintiff, subject him.

With this modification the order should be affirmed, ■ without costs of this appeal to either party.