Klinck v. Kelly , 63 Barb. 622 ( 1872 )

By the Court, Gilbert, J.

The questions presented are: 1st. Whether there was a valid and completed sale of the goods by Folger & Tibbs to the plaintiff; and 2d. Whether the facts make out the cause of action alleged. Upon both these questions our opinion must be in the affirmative.

Nothing appears to be wanting to make an effectual bargain and sale of the whole stock of goods. An inventory was made, and thus the goods were designated; the price was agreed upon, and a part of it paid; and all that it was in the power of the vendors to do was done, to make a delivery of the goods. The goods had been seized by the sheriff by virtue of an attachment against Folger & Tibbs. But this did not alter the general property in the goods, or disable Folger & Tibbs from making a sale of them, subject to the rights acquired by means of the attachment. The attachment created a lien only. The goods were held by the sheriff contingently “ as security for such judgment as the attaching creditor might recover;” (Code, § 227;) and upon payment' of the debt and all costs of the proceeding, it was the duty of the sheriff to restore the property. (Idem. § 237.) We have no doubt that the transaction embraced all the elements requisite to make an effectual sale of the goods. (Crofoot v. Bennett, 2 N. Y. 258. Olyphant v. Baker, 5 Denio, 379.) The sheriff was not authorized to seize or hold the goods under the attachments which came into his hands after this sale was made ; for the reason that the goods were no longer the property of Folger & Tibbs, but of the plaintiff. It is scarcely necessary to observe that the court below having nonsuited the plaintiff, we are bound to assume, in the present disposition of the case, and have assumed, that the transaction between the plaintiff and Folger & Tibbs was not fraudulent, as to the creditors of the latter. For if the question of fraud had been raised, in the court below, it would have been the duty of the court to submit the case to the jury.

[First Department, General Term, at New York, November 4, 1872.

The plaintiff offered, before this action was commenced, to pay the sheriff the amount for which he held the goods, at the time of the sale to the plaintiff, if he would restore the goods. ' This was refused by the sheriff, on the ground which was distinctly stated by him—that he should hold the goods under the other attachments. After such a refusal, a formal tender would have been useless, and was therefore unnecessary.

The plaintiff’s right to the possession of the goods, upon payment of the amount of the first attachment and costs, is clear. The offer to pay, under the circumstances, was equivalent to actual payment, and the refusal of the sheriff to restore the goods on receiving the payment offered, was an act of conversion on his part.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Leonard and Gilbert, Justices.]