Armstrong v. Dubois

By the Court.

Mason, J.

When the plaintiff’s evidence was in, there can be no doubt his case was made out. He was entitled to recover. [The learned judge here recited the facts as they are above stated, and continued:] The defendant remained silent and made no reply, and must be held to have sanctioned and approved what his attorney, Van Pelt, said and did. This was enough to make him liable. Any one who unlawfully intermeddles with another’s goods, although there be no manual interference therewith, as exercising an authority over them in defiance or exclusion of the OAvncr, is liable for a conversion. Cow. Tr. § 556, 4th ed. by Tracy, 1856. The deputy sheriff is the agent of the plaintiff in seizing the property, and when the plaintiff directs or is present with his attorney, and allows him to do so, and refers the officer to him for for directions, and the attorney gives them in his presence, it is precisely the same as if the plaintiff gave them himself, for he must he deemed to have sanctioned and approved the acts of his attorney. Stewart v. Wells, 6 Barb. 79. He is responsible for the directions and acts of his attorney (Newberry v. Lee, 3 Hill, 523); and the rule seems to be, that wherein the attorney conducts the suit in such a way as to be liable to an action of trespass himself, his client is also liable. Barker v. Braham, 2 Wils. 396; Bates v. Pilling, 6 Barn. & C. 38; Brown v. Feeter, 7 Wend. 301; 3 Hill, 525; Leigh Nisi Prius, 1479.

The question, whether here was evidence of conversion against the defendant, certainly should have been submitted to the jury; for where the evidence of a conversion is slight, the jury are proper judges of the sufficiency thereof. Harger v. McMais, 4 Watts, 418; Leigh Nisi Prius, 1479.

The only remaining question is, whether the stipulation put in evidence by the defendant contains admissions which take away the plaintiff’s case, and deprive the plaintiff of his cause of action.

It is proper to consider in this connection the circumstances under which this stipulation was given. The defendants made a motion to transfer this cause of action to the supreme court, and to change the place of trial to the county of Westchester, on the ground of the convenience of witnesses, and to obviate said motion the plaintiff’s attorney gave this stipulation, in which the plaintiff agreed to admit on the trial:

1. That the sheriff received no directions, instructions or communications from this defendant personally, in reference to the levy or sale under said executions, or either of them.

2. That the said William P. Little, as such special deputy, levied upon and sold the goods, under the said two executions of this defendant and said Ackerman and Deyo, withont having received any directions or instructions so to do from this defendant personally.

3. That this defendant took no part in this said levy and sale, and had no portion of the proceeds of the sale personally.

There is an affirmation, contained in brackets, at the bottom of each of said three admissions, that no implication should be drawn from the form of said admissions, that the defendant had given such direction and instruction to said deputy through his attorney, agent, or any other person; or that the defendant had done, received or suffered any of the things named in the third clause, by any person on his behalf. These negative affirmations, embraced in brackets, at the end of each clause of the stipulation, make no other claim and can have no other effect, than to repel any implications being drawn from the stipulation itself against defendant as to any of the things therein referred to, and could never have been intended to deprive the plaintiff of the right to make proof in regard to them. I do not think this stipulation should be held to overthrow the plaintiff’s case made by his proof. All there is in the first two clauses of the stipulation is an admission that, personally, the defendant did not give any directions or instructions to the deputy in reference to the said levy and sale. This is quite consistent with the case made by the plaintiff’s evidence. He did not give any directions or instructions, personally, but his attorney did, in his presence, and he, by his silence, approved it.

And I cannot regard the admission in the third clause as necessarily admitting away the plaintiff’s case.

The admission is, first, that the defendant took no part in the said levy and sale. This may all be true; and yet the plaintiff’s case made by his evidence be true. Very likely the defendant did not take any part in the levy or sale.

The evidence does not show when the levy or sale was made. He may have done just what the plaintiff’s evidence proves he did, and yet not have taken any part in the levy or sale. He was asked to release from the levy the plaintiff’s exempt property, and turned the plaintiff over to his attorney, Van Pelt. This, certainly, was not taking part in the levy, and there is no evidence that he was present or took any part in the sale. Hor is there any pretense in the ease that he, personally, had any portion of the goods, or that he had received any of the proceeds of the sale. His attorney may have them. At any rate, it is quite immaterial what has become of them.

The judgment should be reversed, and a new trial granted.

Clebke, J., was of opinion that as the stipulation unqualifiedly admitted that defendant took no part in the levy and sale, had none of the goods under his control, and received none of the proceeds, and no proof was given or offered that the alleged trespass was committed by the defendant’s direction, or that he indemnified the sheriff, or in any way ratified his acts, the judgment should he affirmed with costs.

All the other judges concurred.

Judgment reversed, and new trial ordered, with costs to abide event.