Smith v. . Orser

42 N.Y. 132, 1870 N.Y. LEXIS 29

• Court: New York Court of Appeals
• Decided: March 18, 1870
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It can scarcely be doubted, I think, that the ruling of the judge at the circuit, that the sheriff, under attachments against two members of a partnership, consisting of three members, had no right to take and hold possession of the partnership property, was in conflict with well settled law in this State.

The warrant of attachment, issued under section 231 of the Code, expressly required him to attach and safely keep all the property of the defendants, Smith and Hyneman, within his county.

The property of these two members of said firm it was his clear duty to seize and safely keep, to answer any judgment that might be rendered in such action (section 232). He could not perform his duty and make the process effectual without taking the property of the partnership into his possession.

It appears that the same learned judge who tried this cause, and made the ruling aforesaid at the circuit, had occasion to examine this question a few months afterward; and in a careful General Term opinion, upon a review of the cases, in Goll v.Hinton (8 Abbott, 122), said: "It is now well settled law in this State that on an execution against one of several copartners, for his individual debt, the sheriff may seize the entire leviable property of the copartnership, and sell as much of the interest of his judgment debtor as may be sufficient to satisfy the execution. To do this he may take manual possession of the copartnership property."

In Phillips v. Cook (24 Wend., 389), this question received from Judge COWEN a very elaborate discussion, and the case distinctly holds that the sheriff may, in such case, seize and take possession of the entire partnership effects, and may sell the interest of the partner against whom the execution is issued; and that an action of trespass will not lie against the sheriff at the suit of the other partners for delivering to the purchaser the property sold. This case has been recognized and approved inWaddell v. Cook (2 Hill, 48, and note a); Mowbray v.Lawrance (13 Abbott, 318), and in other cases, and has never been seriously questioned, I think, in any well considered case in this State. A rule so long established and acquiesced in, and of such practical consequence, I think, should rarely be changed, except by the legislature.

There is no distinction in principle between an attachment and an execution, in respect to the duty of the sheriff to seize and take into his possession the chattel property of the debtor in the due execution of the process.

The order setting aside the verdict, and directing a new trial, should be affirmed, and judgment absolute be ordered for the defendant.