Michelson v. Fowler

34 N.Y. Sup. Ct. 159

• Court: New York Supreme Court
• Decided: May 15, 1882
• Status: Published

Opinion

Landon, J.:

The bill of sale to Browner was good against the plaintiff, as a mortgage, in the hands of the defendants Fowlér and Lyons. Subject to the mortgage, plaintiff had a special interest in the property upon which the constable could levy. (Smith v. Beattie, 31 N. Y., 542; Hall v. Sampson, 35 id., 274; Hathaway v. Brayman, 42 id., 322; Hull v. Carnley, 11 id., 501, and 17 id., 202; Goulet v. Asseler, 22 id., 225.)

Passing by the bill of sale to Fowler and Lyons, at the date of their taking the goods from the constable, they, as the assignees of the bill of sale to Browner, were the owners of the goods, subject to plaintiff’s special interest. That special interest the constable levied upon, and by virtue of it took possession of the goods. So that when the defendants took the goods from the constable the plaintiff had neither possession nor the right of possession. We have been constrained to hold in the replevin case of Fowler and Lyons against Haynes, these defendants against this constable, tried upon the same evidence and submitted upon appeal at the same time as the case now under discussion, that the constable, upon recovery by him, is entitled to recover the full amount of the special interest of the plaintiff in the goods levied upon, and not merely the amount of his execution. (Buck v. Remsen, 34 N. Y., 383.)

It follows therefore that the defendants are not also liable to the plaintiff for the value of the same special interest, for the constable’s possession excludes that of the plaintiff.

The judgment must be reversed and a new trial ordered, costs to abide event.

Learned, P. J., and Boakdman, J., concurred.

So ordered.