Koland v. Van Aken

248 A.D. 918, 290 N.Y.S. 768, 1936 N.Y. App. Div. LEXIS 8072

Opinion

In an action brought to recover damages for wrongful seizure of personal property under an alleged execution, issued upon an alleged judgment in a Justice’s Court in the town of Wawarsing, Ulster county, judgment entered in favor of the defendant after a trial before the court without a jury, pursuant to stipulation, reversed on the law and the facts and a new trial granted, costs to abide the event. The record fails to disclose evidence sufficient to justify the seizure of the property by the defendant. In this action the defendant constable, in order to protect himself, must show that there was a judgment upon which was issued an execution under which defendant seized the property. (Jansen v. Acker, 23 Wend. 480; High v. Wilson, 2 Johns. 45; McCune v. Peters, 54 Misc. 165.) If it be shown that the execution is lost, secondary evidence of its contents and issuance may be offered. The entry of the judgment may be shown by the justice’s record. Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.