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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 651 This action is brought by the plaintiff against the defendants to recover the value of a horse taken by the defendants in an execution upon a judgment against him. The plaintiff claimed that the horse was exempt under the act of 1842, he being a householder, and the horse forming his team, and the whole amount of his personal property being within the sum mentioned in that action. A verdict was rendered for the plaintiff for the sum of $145.34, and the judgment entered thereon was affirmed at General Term. The value of the horse, and the judgment and execution, were admitted upon the trial, and the only question litigated was whether or not the horse was exempt under the act. Two trials have been had on this action. Upon the first trial the plaintiff was nonsuited. Upon a case made, the General Term of the Supreme Court set aside the nonsuit, and ordered a new trial. Upon the second trial, a verdict *Page 652 was rendered for the plaintiff, and exceptions taken by the defendants to several rulings of the judge at the trial, in reference to the admission of evidence which was directed to be heard in the first instance at the General Term. That court overruled the exceptions and gave judgment for the plaintiff, and from that judgment the defendants appealed to this court.
The record contains, in addition to the case and exceptions made upon the second trial, the case made upon the first trial, when the plaintiff was nonsuited. This was improperly incorporated into the judgment record, and should not have been transmitted to this court. The order granting a new trial, made in the first instance, was not appealed from by either party, but was acquiesced in by both, and the present notice of appeal does not indicate that the defendants desired to have it reviewed here. Whether the Supreme Court properly or not granted the new trial, is not a question before this court. It is not an intermediate order involving the merits and necessarily affecting the judgment, contemplated by the first subdivision of the eleventh section of the Code. This court only reviews the questions of law presented by the exceptions stated and taken in the case. (Oldfield v. N.Y. Harlem R.R. Co., 14 N.Y., 321;Dain v. Wyckoff, 18 N.Y., 47.) The case made upon the first trial was made by the plaintiff, and contained no exceptions, and, therefore, presented no question for review in this court. (Magee v. Baker, 14 N.Y., 435.) The appeal from the judgment entered in this case brings up for review only the judgment appealed from, and the case made on the motion to set aside the nonsuit on the first trial might, and properly should have been, stricken out on motion. (Smith v. Grant, 15 N.Y., 590.) We could not proceed to review the order made for the new trial upon the facts contained in the case in the present record, as it may well have been granted for some reason dehors that record. Both parties acquiesced in the order and went down to the new trial, and upon this appeal we only review the proceedings had upon that trial, and the propriety of the judgment entered thereon. *Page 653 In the view we take of the law, upon the facts as presented upon that trial, the plaintiff was entitled to recover. This brings us to an examination of the matters arising on the second trial and the exceptions there taken.
It is provided by the act of 1842 (3 R.S. 5th ed. p. 646, § 23), as amended, by Laws of 1859, chap. 134, p. 343, that, in addition to the articles then exempt from sale on execution, there shall be thereafter exempted, "necessary household furniture, and working tools and team, owned by any person being a householder, or having a family for which he provides, to the value of, not exceeding, two hundred and fifty dollars, and in addition thereto, there shall also be exempted from such levy and sale, the necessary food for said team for a period not exceeding ninety days." On the trial the plaintiff gave evidence tending to show that he was a householder and had a family for which he provided, and that the household furniture and team, owned and possessed by him, exempted by the act of 1842, did not exceed in value the sum of two hundred and fifty dollars, and the verdict of the jury in his favor, must be deemed to have established these facts. They being established, the legislature have declared that such team was necessary to such householder, a person having a family to provide for, as much as his working tools. The word necessary, as used in the statute, applies to the household furniture, and qualifies the extent of that furniture exempted. There was no motion for a nonsuit, or exception to the judge's charge, or any request made to charge on the part of the defendants. We therefore assume that the case was properly submitted to the jury, and their verdict on such question is final and conclusive, and cannot be disturbed, if there was no error in the admission or rejection of evidence. Judge WELLES, in the case of Hoyt v. Van Alstyne, (15 Barb. 568), took the correct view of the statute, when he said that evidence having been given, tending to show that the plaintiff was a householder, having a family for which he provided, and that his mare was all the team he had, and that it was used in the prosecution of the business in which *Page 654 he was engaged, this was all that it was necessary for the plaintiff to show to bring him within the statute, and to entitle him to its benefits. Even if it was required of the plaintiff to show that the team was necessary to the support of his family, or in the prosecution of his accustomed business, we should assume on this verdict of the jury, that they so found. If essential to be established, it was a question of fact for the jury, and we assume they resolved it favorably to the plaintiff.
It is now urged on the part of the defendants that one horse does not constitute a team, and that therefore the plaintiff's horse does not come within the letter or spirit of the statute. It is a sufficient answer to this objection, that it does not appear to have been taken or urged at the trial. But there is no force in the objection. The current of decision, in this State, is uniformly hostile to such a construction. The object and intent of these enactments by the legislature, were correctly stated in the opinion in Kneetle v. Newcomb (22 N.Y., 249.) It was there said by DENIO, Ch. J., that these exemption laws apply only to householders who have families, for which they provide. It is a fair inference from this feature that one object of the Legislature was to promote the comfort of families and protect them against the improvidence of the head. This was so considered by the Supreme Court in Woodward v. Murray (18 Johns., 400.) "I think it clear," said Judge PLATT, "that the legislature meant to confer this privilege on each of those little primary communities called families." Again: "It was designed as a protection for poor and destitute families, and the forlorn and destitute condition of his family, in the absence of the husband and father, gave them a peculiar claim to the benefit of the statute." Judge DENIO further observes, "that some articles are now exempt which do not enter into the common use of the family as such, but it was supposed that the protection of the team and the implements of a man's trade, would be likely to enable him to keep his family together and to preserve the domestic establishment from want and dispersion." Keeping in view this humane *Page 655 design of the legislature, in what sense are we to construe the word "team" as thus used in the statute? We are to bear in mind that the total exemption of household furniture, working tools and implements of trade cannot, in the aggregate, exceed the sum of two hundred and fifty dollars. If, therefore, we hold that the word "team" as used in this statute, means two or more horses, or two or more oxen, it must be seen that one team, if composed of but two animals, must nearly, if not quite, exhaust the limit of exemption, and if more than two, then it must be wholly exhausted, unless the animals were of very inferior quality or value, and nothing would be left, within this limit, for exempted household furniture and working tools. It is apparent, from these considerations, that the "team" in the mind of the legislature was not of the character thus indicated, but any team which a householder, a head of a family, might or could use in and about the business of providing for such family, whether the number of animals composing the team consisted of one, two, three, four or more. A team may be formed with either of these numbers, and whichever may compose it, if within the purview of the statute, and the limit as to value fixed by it, it will be exempt. This was the view taken by the Superior Court of New York inHarthouse v. Rikers (1 Duer, 606), where the question arose, whether a cartman's horse, used in his dray or cart, was exempt under this statute.
It is familiar to daily observation that carts there are drawn by one, two, three and four horses, but more frequently by the former number. BOSWORTH, J., pertinently observed, that however inartificial the expression may be, yet the phrase, "a one-horse team," is often used, and expresses a clear idea to the common mind. Unless the word "team," as used in the act of 1842, includes that, then a single horse, harness and cart would not be exempt, though used together by a householder as a team to do team work. He says: "I think a team, within the meaning of that act, means horses or oxen harnesses to a vehicle, and includes the three, and that though there be but a horse, harness and cart, instead of two *Page 656 horses, harness and a wagon, they are exempt from execution if of less value than $250, and are necessary for the owner's support, he being a householder, or having a family for which he provides. Under a contrary construction, the act, so far as it exempts a team, would have, practically, no application to this city. The `team' of a carman would not be a team within the meaning of the act." And such a construction would render the act in this respect almost a nullity, as those most generally claiming the exemption secured by the act, have a team consisting of only one animal. Those mainly for whose benefit the act was intended would be thus wholly excluded from its benign provisions. Such is not the construction this provision has received in our courts, as the authorities show. (Wheeler v. Cropsey, 5 How. Pr., 288;Hoyt v. Van Alstyne, supra; Radcliff v. Wood, 25 Barb., 52;Lockwood v. Younglove, 28 Barb., 505.) In the case last cited, JOHNSON, J., said: "It is claimed that the horse in question was not and could not be a team. But it has been so repeatedly decided in this court that a single horse is a team within the meaning of the statute, when it is kept and used as such, that the question must be regarded as settled."
The plaintiff sought to establish, on the trial, that the horse taken by the defendants was necessary to him in procuring the means of living, and for the support of his family. Had you any other business except in connection with this horse? and if so, what was it?" This question was objected to by the defendants, and he answered, "I had no other business to obtain a livelihood except from the use of this horse." He was then asked, "State if you had any arrangements made for the use of this horse in the future, and what use you intended to put him to in the future?" This question was objected to by the defendants' counsel, and admitted, and exception taken.
In the view of the law we take, this inquiry was wholly immaterial and unnecessary. It was sufficient for the plaintiff to show that this horse constituted his team; that he was a householder, and that his household furniture, workman's *Page 657 tools and team did not, in the aggregate, exceed in value the sum of $250. Upon these facts being established, he was entitled to the exemption provided for in the statute. He had shown that this horse was used by him as a means of obtaining a livelihood, and that he had no other means for that purpose, and the inquiry as to the arrangements for the use of the horse in the future was wholly immaterial. Its admission could work no injury to the defendants, and the answer was equally innoxious. To meet the objection urged, that a team must necessarily consist of two horses, the question put to the plaintiff, and objected to by the defendants, namely, "state if one horse can be used alone," was manifestly proper. The answer rebutted the theory of the defendants, that a team could only be composed of two or more horses. It only developed a fact patent to all observers, and which might have been assumed if it had not been proved. The proof of the fact was unobjectionable. The defendants offered to show by a witness, that shortly before the horse was taken, the plaintiff, in the months of December, 1856, and January, 1857, owned two other horses worth $200, and had other property which he had disposed of; that he had transferred the avails thereof to his wife, and that she held these avails when the defendants took the horse. This evidence was excluded by the judge, and the defendants excepted. This offer shows a very imperfect appreciation of the intent and object of the statute. The exemption provided for by it, is not exclusively for the benefit of the owner of the team. It is mainly that the family for which he provides may not be stripped of all means of support, and cast as paupers on the community. It was not to be withheld from those who had committed crimes or frauds, or from those who had participated therein. Neither did the statute contemplate that those only should participate in its benefits who had previously owned property beyond the limit fixed by it. The amount of the exemption was fixed. Property to the value named was withdrawn, for reasons deemed wise by the legislature, from the operation of execution creditors. Whether the debtor had more or less beyond that, was and is wholly *Page 658 immaterial. The court, in Wheeler v. Cropsey (supra), gave a correct exposition of the statute in this respect. They say: "In determining whether the team was necessary, it is entirely immaterial whether the debtor had or had not other ample means to pay the debt. If the fact that he had money enough to pay the debt is to control this question, then a teamster's horses and a mechanic's working tools are not to be exempt if the owner has money enough in his pocket to pay the judgment. This cannot be the test. We think the team of every teamster, and of every other man, when it is necessary to his use, is exempt, although the owner may be worth thousands of dollars, in money or in other property. The exemption is not made in the statute to depend on the pecuniary ability of the debtor. When the debtor has money or other property, the law has provided ample remedies for collection, without resorting to exempted property for the satisfaction of the debt." The proof offered was, therefore, properly excluded. No other question is presented in the record, and the judgment appealed from must be affirmed.