Vose v. Woods

33 N.Y. Sup. Ct. 486

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

Opinion

' Barnard, P. J.:

There is a good cause of action against all the defendants. The plaintiff’s property was seized by Woods. It was seized under color of separate attachments in favor of the defendants Marshall, Shaff, Decker and George. This attachment was not against the plaintiff, and was illegal and void against “ anyone.” The property was placed by Woods in the hands of the defendants Davis’ in storage, who refused to give it up except upon payment of twenty- - five dollars. If the attachments had been good against J. A. Y ose, the defendant therein, and the seizure of plaintiff’s property thereunder had not been directed or'assented to by the plaintiffs therein, the constable would only have been liable. The attachment being void and the constable having been directed to seize J. A. Yose’s property, and having in fact seized plaintiff’s, all were liable, because the seizure was illegal as to everyone, and it is no defense that, in attempting to trespass upon one person, a trespass was commit'ed upon another.

The defendants Davis’, by holding under this illegal seizure until they were paid a considerable sum of money to release it, became trespassers db initio. The statements that the plaintiff did deliver the goods in question to the defendants Davis’ for transportation for her before the levy was made, and that the levy was made while the goods were in Davis’.cart, might have been left out of the complaint. A good cause of action in trespass is set out without these averments. The place of levy, however, was immaterial; its statement does no harm.

The judgment should be affirmed] with costs, with leave to defendants to answer in twenty days on payment of costs.

Gilbert and Dykman, JJ~., concurred.

Order overruling demurrer to complaint affirmed, with costs, with leave for defendants to answer in twenty days on payment of • costs.