In Frost v. Mott (34 N. Y, 253) it is held : “An officer who seizes all the property of a debtor, knowing that part of it is exempt, cannot justify the seizure by the omission of the debtor to designate a particular portion of it as not subject to execution or attachment.” .In this case an officer had levied upon an entire flock of sheep. At page 257, Judge Porter, writing for the court, says: “ As between the plaintiff and the defendant there was no waiver of the exemption, and the appellant who took the entire flock cannot justify the wrong by the claim that he did not know'which of them to leave. He neither requested the plaintiff to designate them nor made any designation himself. The mere silence of the party while the officer is stripping him of property exempt from seizure, under color of legal authority, furnishes no protection to the wrongdoer.”
The stove and sewing machine, if not the wearing apparel, were clearly exempt within the presumed knowledge of the officer, and within the authorities the. silence of the plaintiff constituted no waiver of the exemption, as there was no selection to be made by him. In 12 American and English ’Encyclopaedia of Law (2d ed.), 225, the rule is stated that no claim of exemption is necessary *88where the statute exempts a certain number of animals or articles of a particular kind or property of a particular kind not exceeding a certain value or amount and the debtor has only so much as is thus exempted. To this rule is cited Stirman v. Smith (10 S. W. Rep. 131); Lynd v. Picket (7 Minn. 184); State v. Haggard (1 Humph. [Tenn.] 390).
The respondents cannot justify this judgment on the ground that the execution under which the levy was made was upon a judgment against the plaintiff in part for personal property exempted. The. statute renders certain property, otherwise exempt, subject to. an execution upon a judgment wholly recovered for the purchase price of certain other exempt property,, but under that statute the stove and sewing machine would in no wise be subject to levy.'
Defendants contend further that the bond does not cover the. acts of the constable which were illegal. . To uphold this contention would be to nullify the effect of the bond, as every trespass is illegal, and for a trespass only could damages be recovered. It is further contended that the constable should first be sued. In Berry v. Schaad (50 App. Div. 132) the contrary rule is held. Inasmuch,, therefore, as the plaintiff was, upon the findings of the referee,, entitled to a substantial judgment, the judgment entered must be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on the law and facts and new trial granted,, with costs to appellant to abide event.