Pozzoni v. Henderson

New York Court of Common Pleas

Pozzoni v. Henderson

2 E.D. Smith 146

DecidedJuly 15, 1853

StatusPublished

This text of 2 E.D. Smith 146 (Pozzoni v. Henderson) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pozzoni v. Henderson, 2 E.D. Smith 146 (N.Y. Super. Ct. 1853).

Pincite

Opinion

By the Court. Ingraham, First J.

1. Whether or not the justice had formed a correct opinion upon the facts proven in this case is not for us to decide. There was evidence on both sides as to the ownership of the property, and although we might differ with the court below on the facts, we do not reverse for that cause.

2. The justice was correct in holding that the sheriff’s sale was not the proper criterion of value. On the contrary, I doubt the propriety of admitting it in evidence at all. It can never be sanctioned as a correct rule, that a trespasser, who has improperly taken the property of a third person, and disposed of it at a forced sale, where it is not likely to bring the full value, may relieve himself from the trespass, by showing that the property brought a less price at auction,! and more especially so, when there is testimony that the? property so taken was of greater value. A trespasser is-bound to pay the full value.

3. A subsequent acknowledgment of an instrument, after its execution and delivery, does not make the person to whom the acknowledgment is made, a subscribing witness, even, with the consent of the obligor. But there is in this case no [148]*148evidence that there was a subscribing witness to it. The parties have not seen fit to furnish to the court a copy of the bond, and we are without means of deciding whether it had a witness to it or not.

4. For the same reason we have no means of deciding whether Henderson was liable or not. The defendant may have signed an indemnity bond, but for what purpose is not stated. Where the whole ground, on which the defendant is sought to be made liable, is, that he signed a bond authorizing the sheriff to levy on this property, evidence of such authority should be furnished by putting the bond in evidence.

Whether it was so or not, it is not in the return. Executing a bond providing for a levy upon this particular property would make the defendant a trespasser, (5 Denio, 92,) but not the mere fact of his executing an indemnity bond. The evidence, as presented to us on the appeal, is insufficient to sustain the judgment. It may be that the judgment should be sustained, if all the matters before the judge had been returned to this court. The return is now defective in the particulars before stated, and we think it proper that the case should stand over for a further return.

Ordered accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court. Ingraham, First J.

1. Whether or not the justice had formed a correct opinion upon the facts proven in this case is not for us to decide. There was evidence on both sides as to the ownership of the property, and although we might differ with the court below on the facts, we do not reverse for that cause.

2. The justice was correct in holding that the sheriff’s sale was not the proper criterion of value. On the contrary, I doubt the propriety of admitting it in evidence at all. It can never be sanctioned as a correct rule, that a trespasser, who has improperly taken the property of a third person, and disposed of it at a forced sale, where it is not likely to bring the full value, may relieve himself from the trespass, by showing that the property brought a less price at auction,! and more especially so, when there is testimony that the? property so taken was of greater value. A trespasser is-bound to pay the full value.

3. A subsequent acknowledgment of an instrument, after its execution and delivery, does not make the person to whom the acknowledgment is made, a subscribing witness, even, with the consent of the obligor. But there is in this case no [148]*148evidence that there was a subscribing witness to it. The parties have not seen fit to furnish to the court a copy of the bond, and we are without means of deciding whether it had a witness to it or not.

4. For the same reason we have no means of deciding whether Henderson was liable or not. The defendant may have signed an indemnity bond, but for what purpose is not stated. Where the whole ground, on which the defendant is sought to be made liable, is, that he signed a bond authorizing the sheriff to levy on this property, evidence of such authority should be furnished by putting the bond in evidence.

Whether it was so or not, it is not in the return. Executing a bond providing for a levy upon this particular property would make the defendant a trespasser, (5 Denio, 92,) but not the mere fact of his executing an indemnity bond. The evidence, as presented to us on the appeal, is insufficient to sustain the judgment. It may be that the judgment should be sustained, if all the matters before the judge had been returned to this court. The return is now defective in the particulars before stated, and we think it proper that the case should stand over for a further return.

Ordered accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

2 E.D. Smith 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pozzoni-v-henderson-nyctcompl-1853.

Opinion

Related

Cite This Page — Counsel Stack