Spoor v. Holland & Harlow

8 Wend. 445

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Nelson J.

The judge decided correctly, that it was not incumbent upon the plaintiff to produce the judgments on which the executions had issued, under which he acted. 6 Johns. R. 195. 7 id. 32. It is objected that the evidence of the plaintiff’s declarations was inadmissible to shew a levy upon the 16,000 brick. The endorsement on the execution merely stated a levy upon a quantity of brick, the joint property of the defendants, without specifying the place where they were found. The brick belonged to the defendants, and were subject to the execution,' and the officer once offered them for sale, but postponed the sale for want of bidders. The officer might have amended his endorsement of levy so as to have identified the brick, which he should have done. Strictly, the declarations were perhaps inadmissible ; but I think there was sufficient evidence to authorize a jury to find the levy, independent of the declarations of the plaintiff

The joint taking of one parcel of brick was sufficiently proved, and we are bound to presume the jury found only'for that parcel, as the verdict is against both defendants. The judge erred in directing the jury to find for the plaintiff the value of the brick converted by the defendants to their use. He could recover only the amount of the executions. The verdict must be reduced to that sum. The judgment should be entered for $81,30.