Tiffany v. . Lord

65 N.Y. 310

• Court: New York Court of Appeals
• Decided: May 5, 1875
• Status: Published

Opinion

Gray, C.

The proof that the property was taken from the possession of the plaintiff was sufficient evidence of his title to it at the time it was taken. The question is, whether it was taken with or without legal authority depends upon the validity of the attachment under which it was seized; and in order to its validity a bond, and such an one as is required by statute, was necessary to confer jurisdiction to issue it. In this case the paper signed by the applicant and surety was without a seal, and very properly held by the court whose judgment is being considered as “ not a bond at all.” The security required was a bond. Even a covenant will not answer, though it follows the words of the statute. (Rockefeller v. Hoysradt, 2 Hill, 616, 618; Homan v. Brinkerhooff, 1 Den., 184, 185.) The plaintiff’s motion to set aside the attachment was rather a protest against the authority of the court to issue it than an axiom of its invalidity. The second motion to set aside the attachment after the first was denied, omitting leave to renew it, was, without leave for that purpose first granted, not good practice; but it did not involve in any way the jurisdiction of the justice to hear and decide the motion, nor did a decision either way upon this jurisdictional question deprive the plaintiff of his right to raise the question in this action, and avail himself of his legal remedy for the unauthorized conversion of his property.

The question, then, is, whether, assuming the second attachment to be valid, it can, by reason of any disposition of the plaintiff’s property under it, without his consent, go in mitigation of the plaintiff’s damages in this action? That it cannot, is settled by authority. (Hammer v. Wilsey, 17 Wend., 91, 94; Otis v. Jones, 21 id., 394; Lyon v. Yates, 52 Barb., 237.)

The property converted consisted of a canal boat. The conversion was in the city of Hew York. The trial was at Oswego. A witness who, after testifying that he resided at Oswego, was asked if he knew the boat and its value. The question was objected to by the defendant, upon the ground that the value of the boat at Oswego was not the measure of damages. The objection was overruled and the defendant excepted. The question was general. An answer stating the value at the place of conversion would have been pertinent, and for any thing that appears by the question or answer, it did refer to that place. The point, if it was material, could easily have been raised by asking the witness if he referred in his answer to the value of the boat at Oswego, and if he answered in the affirmative, to move to strike out the answer.

The judgment should be affirmed.

All concur.

Judgment affirmed.