Kneettle v. Newcomb

31 Barb. 169, 1857 N.Y. App. Div. LEXIS 233

• Court: New York Supreme Court
• Decided: January 5, 1857
• Status: Published

Opinion

By the Court, Pratt, J.

This was an action for taking and converting personal property exempt from execution. The property was taken by Brown, a deputy sheriff, upon an execution in favor of Newcomb, against the plaintiff, by direction of the defendant Newcomb. Judgment was recovered upon two notes in the usual form, With an additional stipulations follows: “ I hereby waive and relinquish all right of exemption of any property that I may have, from execution on this debt.” The question is whether this agreement makes property, otherwise exempt, liable to be taken upon execution. Upon this point the decision in Crawford v. Lockwood (9 How. 548) is conclusive. That was a decision at general term, upon the very point in issue in this case. The court seems in that case to have given the question a very careful examination; and we should not feel at liberty to disregard the decision, even did we not conctir in the conclusion at which it arrived. But, for myself, I fully concur in the correctness of that decision. I am unable to see how that stipulation .can be made available as a defense to the action.

[Oenida General Term, January 5, 1857.

In the first place, the defendant could not justify under the execution, for the property is by law exempt from execution.

Secondly. The stipulation vested in the Creditor neither right of property nor right of possession.

Thirdly. The defense is not available by way of estoppel, for the reason that both sides were aware of all the facts. .

Jtidgineht affirmed.

Hubbard, Pratt, Bacon and W. F. Allen, Justices.]