Kamena v. Wanner

6 Abb. Pr. 193, 6 Duer 698

Opinion

By the Court.

Footnotes

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Pierrepont, J. This is an appeal from an order of the special term overruling a demurrer.

The plaintiff sues Thompson, a constable^ and one Wanner, who was plaintiff in an attachment against Waltje ICamena, and alleges, in the second count of his complaint, that the constable, having levied upon the plaintiff’s property by virtue of an attachment, he (the plaintiff), as claimant of the property, tendered a bond in conformity with the statute, and that the said constable refused to deliver him the property, but- sold the same, and that Wanner instigated the constable to these acts; that the bond tendered was in the penal sum of $1000, and that the property demanded to be delivered, on the tender of the bond, was of the value of $2800. The complaint prays-judgment in the sum of $3300.

The defendant Wanner demurs to this count.

The bond required by the 31st section of chapter 2, article 2, of part 3, of the Revised Statutes (2 Rev. Stats., 4th ed., 432), requires that the bond shall be “in a penalty double the value of the properly attached.” Section 34 shows clearly that the statute contemplates protection to the real owner of the property as well as to the plaintiff in the attachment.

A case which may often happen will illustrate the importance . of this provision in the law.

The defendant in the attachment is tenant of the furnished house of “A:” the furniture is seized by the constable on an attachment against the tenant to satisfy a claim of $400 : the •constable, not knowing how the furniture will sell, and quite ignorant of its value, seizes the whole, which proves to be worth $5000. A stranger claims the furniture, gives the bond approved of $800, and takes the property. The real owner learning that his property has been thus taken, goes to the constable to replevy it, and finds in its stead a bond of $800, and that the furniture has gone no one knows whither.

But if the construction for which the plaintiff contends be the true one, the constable could not refuse making the delivery to .such claimant, although he had meanwhile learned that the property attached was worth ten times the penalty of the bond {§§ 31, 32). Taking the construction of the statute which we are disposed to give to it, this - count of the complaint, divested of all verbiage and circumlocutions, may be fairly stated thus.

The plaintiff complains that the defendant Thompson, being a constable, seized, by virtue of an attachment against Waltje Kamena, property of the plaintiff of the value of $2800 ; the plaintiff claimed the same, and tendered to the said constable a bond, duly executed and approved, in the sum of $1000, according to the statute, which requires that said bond should be in the sum of $5600 ; that said constable refused to deliver the property on such tender of the aforesaid bond, and that the defendant Wanner advised and instigated the constable to said act. Wherefore the plaintiff demands judgment against the said defendants for the sum of $2800, the value of the property, and $500 damages, besides interest and costs.

We think such a complaint does not state facts sufficient to make the constable liable; and it follows that Wanner could not be liable for advising the constable to act according to law.

The demurrer must be sustained, and the order of the special term reversed, with costs.

Present, Bosworth, Hoffman, Woodruff, and Pierrepont, JJ,