I cannot agree with the; prevailing opinion of Mr. Justice Cullen for reversal because I am satisfied that we are in a position to do - exact justice between the parties, and that further litigation over a small amount should'be prevented.
The defendant, as sheriff of: the -county of Orange,-in March,' *3831897, levied on, removed and sold at auction certain stock in trade, fixtures and book debts, by virtue of an attachment against the property of Frederick Yogedes, the husband of the plaintiff. It appeared without contradiction that the plaintiff, in 1896, loaned her husband $3,700 to go into business asa manufacturer of cigars; that she afterward discovered that he had become insolvent, and •that in December of that year she consulted a lawyer and compelled her husband to give her a written bill of sale of the property in question. The plaintiff went into actual possession of the business, changed the sign over the door, paid the rent and executed a power of attorney appointing her husband • her attorney to carry on the business. With these undisputed facts in evidence the' court properly ruled that there was no evidence impeaching the plaintiff’s title to the property, and that the only question for the jury was the value of the property seized and sold by the sheriff.
I do not overlook the contention of the defendant, that there is an estoppel arising from the fact that when the sheriff made his levy the plaintiff asserted a claim only to a stove and two pictures which the sheriff had enumerated in his inventory, which goods were,' therefore, excluded from the levy. There was sufficient evidence to justify the jury in.finding that when the sheriff levied upon the goods, the plaintiff notified him that the business and all the property belonged to her ; in addition to which it appeared that, a few days after the levy, and- before the sale, the plaintiff on two occasions gave the sheriff written notice of her title under, the bill of sale to all the seized property and demanded its return." There could be no estoppel under these circumstances by any failure of the plaintiff to make her claim at the time of the levy, as the sheriff had full notice before the sale of the plaintiff’s title to the property. These facts clearly differentiate the present case from Chapman v. O’Brien (34 N. Y. Super. Ct. 524), cited by the appellant.
But I am inclined to think that the verdict was excessive. One of the plaintiff’s witnesses testified that the value of the goods seized and sold by the sheriff was $285.30, while the plaintiff testified that the value was $388.10. These goods were sold at auction by the sheriff for $73.90, and one of the appraisers appointed by the sheriff fixed the value at $120, but he admitted that he did not know the value of some of the goods. On this evidence the jury would *384have been justified in finding the value of the goods, sold to be the lowest amount testified to by the plaintiff's witness, $285.30. To this should be added the amount actually collected by the sheriff on the book accounts which were levied on under the attachment.
It is not necessary to decide the question of the right of the sheriff to sell the book accounts, even though they were formally levied on by him under the attachment. He is clearly liable for such collections as were made by him, and these he admits amounted to $77.35. These two sums amounted to $362.65, and I think the judgment should be reversed unless the plaintiff stipulates to reduce the judgment and allowance accordingly.
Order denying defendant’s motion, for a new trial reversed, and new trial granted on payment by the defendant, within twenty days, of the costs and disbursements of the trial, in which case the judgment appealed from is vacated; on failure to comply with the terms aforesaid, judgment and order affirmed, with costs.