Most of the propositions in the judge’s, charge to the jury on which the appellants’ counsel founds his allegations of error are- manifestly comments upon the facts of the .case, or expressions of opinion in -regard thereto, and are not the subject of exception; and the remedy is not to ex■cept thereto, hut to call the attention of the judge to them, and ask for fuller explanations in regard thereto,.or demand their submission to the jury, as questions of fact.
Of this nature is the remark that there was no evidence of any. collusion between the plaintiff and Elmendorf in regard to the purchase of the Alida; also, the remark that the nine thousand dollars and the proceeds of the stock of the State of New York Bank and Huguenot Bank, were all the moneys shown to have belonged to Elmendorf, or to have been ad-vanced by him to the. plaintiff; and also the remark that if Morey was to be credited, there could be but little doubt that, he both ran the boat and purchased the coal as the agent.of the plaintiff.
The only point in regard to which I have had any hesitation was the refusal to comply with the defendants’ request to *491charge in a single particular, and the rejection of a single offer of evidence. The defendants requested the court to charge that although Morey supposed he was acting as the agent of Van Vechten, yet if- Elmendorf was the man standing back, and Van Vechten was his agent, then Morey’s supposition as to' the party for whom he was acting made no difference. The court refused to charge in this form, and the defendants’ counsel excepted. I think on the whole such refusal was proper, for the following reasons:
1. It was not in itself quite clear and intelligible. It probably was intended to say that if Elmendorf was the real principal of Van Vechten, who was the apparent principal of Morey, Morey?s ignorance of that fact, and -supposition that Van Vechten was the' real and' ultimate principal, would not prejudice the defendants’ right to go back to the real, though remote principal in the transaction. But the idea was not very, clearly conveyed by the language used.
% The court had already charged that if Morey was acting as agent for Elmendorf, .'they must find .-for the defendants. This embraced the substance of the instruction asked—not in the precise words proposed—but in legal effect. And it is not to be supposed that the counsel had neglected to present the application of the principle in all its various phases to the jury, or that the court would have refused a more detailed exposition of it to the jury if it had been properly and intelligibly requested.
The defendants’ counsel also offered to prove that the debt in the Styles judgment was in fact, by an agreement for a valuable consideration, entered into between Elmendorf and Schoonmaker, the debt of Elmendorf to pay, and had been assumed by the latter. This evidence was twice offered and twice rejected by the court, and the defendants excepted. I adhere to the opinion I entertained when the case was in the supreme court, that this was error. Schoonmaker- justified under the Styles judgment, and as he was a defendant therein, and had, moreover, by his own check, paid the same when it was assigned to his mother, Cornelia Schoonmaker, it became necessary, in order to show that the judgment was still" in life and not extinguished, to prove either that the' assignment was *492a Iona fide one to the latter, paid for with her money, or taken in her name, though for the benefit of Marius Schoonmaker, in order to enable him to collect its amount of the party (Elmendorf) really and primarily liable to pay. Having this object, the testimony was, in my opinion, proper, and should have been admitted. But a suggestion is now made which was not presented in the supreme court, that although this may have been technically erroneous, it worked no practical prejudice in the final result to Schoonmaker, as the defendants justified under another judgment—that of Lefever—wholly unimpeached, and inasmuch as the jury rendered a general verdict in favor of the plaintiff against all the defendants including Lefever, it must have been founded upon the fact, ascertained by the jury and declared by their verdict, that the coal which was the subject of the controversy was the property of Van Vechten, and not of Elmendorf, at the time of the levy and sale under the judgments and executions. On reflection I regard this as a satisfactory answer to the argument based on the rejected evidence. ' I am not able-to see that Schoonmaker has been prejudiced by its erroneous exclusion, and I therefore assent to the affirmance of the judgment of the court below.
Davies, J.[After stating the facts; and remarking that the verdict of the jury affirmed that the coal was the property of the plaintiff; and, if there had been no error in the admission or rejection of evidence, that the verdict must stand, and the fact affirmed by it, be regarded as established.]—The inquiry as to the arrangement between Schoonmaker and Elmendorf, was wholly immaterial upon the issue submitted to the jury, and passed upon by them, namely, whether or not Van Vechten was the owner of the coal levied upon and sold by the defendants as the property of Elmendorf. They only needed the judgments and executions against Elmendorf as a protection and justification in seizing and taking his property. The judgment could not in any sense be said to justify the taking of the plaintiff’s property. Hot until that issue (the only one submitted to the jury) had been found adversely to the plaintiff, did the inquiry become at all material, in reference to this or any other judgment against Elmendorf. If the coal was *493the property of the plaintiff, the defendants then became trespassers, and it is immaterial whether they took it under cover of judgment and execution, and sales thereon, or how otherwise, and it is equally immaterial whether such judgments were pretended or real, void or valid. In any event they could furnish no justification or excuse for taking and selling the plaintiff’s property. It was of no importance, therefore, whether the agreement inquired about existed or not. It could only have been material in the event'that the jury had found that the coal was the property of Elmendorf, and the defendants were seeking to justify themselves for taking and converting his property.
Bo question was made as to the Lefever judgment. That was a valid and subsisting judgment, and if the coal was the property of Elmendorf], the levy under the execution issued upon it, and the sales by virtue thereof divested Elmendorf of all right and title in the coal, and vested the same in the defendants, the purchasers at the sale. This made their title and justification upon this hypothesis complete, and they had no occasion to strengthen it by invoking the aid of the other judgment. It was assumed by the charge that the defendants had good title to the coal, and were .justified in taking it, provided it was not the property of this plaintiff, and the issue was narrowed down between the parties to that simple question. The defendants could have sustained no injury by the exclusion of the offered evidence. Each of the defendants in his answer claims that the coal, at the time of the sale, was the property of Elmendorf, and in his possession, and the defendant Schoon-' maker admits that he was one of the purchasers thereof at said sale and claims title thereto by virtue of said sale. He could not, therefore, fail in his defense, even if the Styles judgment had no existence, provided the, defendants had established on the trial that the coal was the property of Elmendorf.
To this end the defendants offered in evidence the proceedings in the district court of the United States, whereby it appeared that the steamer Alida had been libeled by the vendors of this coal, to recover the amount thereof, and that the vessel had been condemned for the coal, with costs, &e. This was a proceeding in rem against the vessel, which was liable *494for the coal furnished her, whoever might have been the otyner of the vessel or the owner of the coal. The proceedings determined no question as to such ownership, and could have no relevancy in arriving at a solution of that question. If the statement of-Morey be true,- that he purchased the coal for the plaintiff, and upon his credit, then the plaintiff became.the owner of it, and he was also liable .to the vendors for the price thereof, as well as the vessel for which- it was-provided. The plaintiff was the owner of the boat, unless there was collusion between him and Elmendorf. The. defendants did not ask that question to be submitted to the jury, and if it had been, and they had found that the sale of the boat to the plaintiff was collusive, and that, in fact, it still remained the property of Elmendorf, there was no evidence given upon the trial to sustain such a finding. If the boat was the property of the plaintiff, then the condemnation and sale thereof ’to pay for the coal, would only show that he had paid for the coal, as he had agreed to do, -when he purchased it; that he had but discharged a debt due by him; and this tended in no degree to establish the position that the coal was the property of -Elmendorf. The evidence was properly excluded.
I am unable to see anything objectionable in the first portion of the charge, objected to by the defendant’s counsel. In it, the judge-states, that if Morey is to be believed, there is little doubt, that he both ran the boat, and acted as the agent of the plaintiff, in the purchase of the coal. ■ Morey’s testimony was not sought to be impeached directly, but circumstances were .adduced.by the defendants, by which they sought to maintain that Morey, in running the boat, and making the purchase-of the coal, acted as the agent of Elmendorf. His positive statement under oath, was that in making the purchase, and running the boat, he acted as plaintiff’s agent. It was the duty-of the judge thereupon, to have called the atten-. tion of the jury to this positive statement of the witness,, to rebut the defendants’ theory, and if his testimony was credited, it effectually demolished it. ■ It was no error on the part of the judge, to say so to the jury. The judge was undoubtedly correct in stating to the jury, that the proof of the facts,in regard to the collusion alleged between the plaintiff and; *495Elmendorf, in relation to the purchase of the boat, or in regard to the money advanced by Elmendorf to the plaintiff, and that the Alida was run for Elmendorf, and not the plaintiff, were only important as bearing on the question of ownership—that is, the question of the ownership of the coal. That was the only question at issue, and the circumstances alluded to had no significance, except as bearing upon that question. If the defendants wished any question submitted to the jury, on the subject of the collusion, or of the moneys advanced by Elmendorf, or as to Morey being his agent, the judge should have been specially requested to submit such questions, and if he had refused, an exception could have been taken. If such refusal had been error, the exception would have been available. Graser v. Stellwagen, 25 N. Y. 315; Plumb v. Cattaraugus Mut. Ins. Co., 18 Id. 392; Winchell v. Hicks, Id. 558.
There was no error in the judge stating to the juiy, in his directions to them to find a verdict for defendants, if they found that Morey was acting as the agent of Elmendorf in the purchase of the coal, that Morey had sworn otherwise. It was not withdrawing from them the decision of the question, whose agent he was, but calling their attention, when they were weighing all the circumstances bearing on that point, to the testimony of Morey himself. It was positive and unequivocal, and his testimony was not sought to be impeached. It was a controlling fact in the cause, and it was the right of the plaintiff to have it placed properly before the jury. The jury were not told to give it any undue weight, but to take into consideration, when discussing this point, what Morey had sworn to. It is difficult to see how the judge could have more impartially or candidly referred to the conflicting testimony in the case. He properly left all the facts and circumstances to the jury, for them to draw such inference, as they, in their judgment should determine. The supreme court saw no reason for disturbing their verdict on the main question, controverted on the trial, and it is not the province of this court, finding no error to have been committed on the trial, to review or interfere with the verdict of the jury upon the facts.
*496The judgment should be affirmed.
All the judges concurred, except H. E. Seeder, J., absent.
Judgment affirmed, with costs.