Henderson v. Brennecke

26 A.D. 309

Opinion

Cullen, J.:

The defendant Brennecke recovered a judgment against William H. Totten and Mary L. Totten, composing the firm of William H. Totten & Co. On that judgment an execution was issued, and the .sheriff of Richmond county levied on the chattels, the subject of this action. The plaintiffs claimed title ‘to-the property under a bill of sale given to them by Totten & Co. On the refusal of the sheriff to surrender the property, the ¡ilairitiffs instituted this action, which is in replevin to recover its possession. Subsequently,' the appellants were substituted as defendants in place of the sheriff. On the trial evidence was given tending to show that, as to the plaintiff Henderson, thesale was made in satisfaction of a Iona fide debt due to him from Totten & Oo. The consideration of the sale to Lillie F. Totten was the individual note of William H. Totten to her. It appeared that the firm of .Totten & Co. was insolvent at the time of the sale to the plaintiffs. The trial court held that the appropriation of the partnership assets to the payment of the individual debt-of the partner William H. Totten was fraudulent and void as against'partnership creditors, and dismissed the complaint as to the plaintiff Lillie F. Totten. The case was submitted to the jury on the claim of the plaintiff Henderson and a verdict rendered in his favor. From the judgment entered upon that verdict this appeal is taken.

The trial court sustained the bill of sale, so far as the title of the plaintiff Henderson, on the authority of Commercial Bank v. Bolton (20 App. Div. 78), and held that that plaintiff was a tenant in common of an "undivided half of the property. Assuming that this ruling was correct, we are of opinion^ that it was insufficient to enable Henderson to maintain the action. As the transfer to the plaintiff Lillie F. Totten was void as against the judgment creditors of the firm, the execution justified the sheriff in- levying upon the property and retaining possession thereof. It is settled by authority that where the execution is against one member of a firm or one of several tenants in common for his individual debt, the sheriff may levy upon and take possession of the common property. (Phillips v. Cook, 24 Wend. 389; Waddell v. Cook, 2 Hill, 47; Walsh v. Adams, 3 Den. 125; Fiero v. Betts, 2 Barb. 633.) The sheriff being entitled to seize the property, an action of this nature could not be maintained, for one tenant in common cannot sue his cotenant in replevin. (Hudson v. Swan, 83 N. Y. 552.) It is urged that subsequently the sheriff assumed to sell the entire property, not merely the interest of the judgment debtors therein. This would constitute a conversion as against the tenant in common upon whom there was no claim, and the latter might, in an appropriate action, 2’ecover the value of his interest. We cannot see how the fact has any bearing on this action, which is not to obtain the value of the chattels, as upon a conversion, but to obtain their actual possession, to which the plaintiff Henderson was not entitled as against the sheriff, and for which no action can be maintained by one cotenant as against another. The plaintiff, upon or before a new trial, may doubtless obtain leave to amend his complaint and avoid the technical objection to the present form of action.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.