Klinger v. Bondy , 43 N.Y. Sup. Ct. 601 ( 1885 )


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  • Landon, J.:

    The plaintiff gave evidence to the effect that Klinger Brothers were the owners of the tobacco in question; that she obtained a judgment against them ; that Rosa Klinger also obtained two judgments against them; that executions were issued to the sheriff upon the three judgments, and that the sheriff sold the tobacco in question to the plaintiff at a public sale under such executions; that after her purchase of the tobacco she left it in the custody of a Mr. Wasserman, in whose cellar it was at the time of the sale; that the sheriff subsequently seized the property upon an attachment against the Klinger Brothers as their property, and sold it against her protest.

    The action was brought against the sheriff; the present defendants as his indemnitors were, on their motion, substituted in hi& place, pursuant to sections 1421-1427 of the Code.

    At the close of the plaintiff’s case the defendants moved for a nonsuit upon the ground that the property was not present at the place of sale within the meaning of the statute (Code, § 1428), nor sold in parcels. The fact was that the sale was at the store of the Klinger Brothers upon one side of the street, and the tobacco in question was in a cellar on the other side directly opposite the store. The sheriff at the sale put up the entire property in the store and cellar in one parcel; he mentioned the tobacco in the cellar, and said if any body wanted to go and look at it he would wait until he returned. The motion for a nonsuit was denied. The defendants then separately offered evidence of their attachment, judgment and execution against the Klinger Brothers,, and sale of the tobacco under it. Also that the judgments against the Klinger Brothers, under which the plaintiff claimed, were fraudulent and void, as founded upon fraudulent claims, and as entered for the purpose of defrauding their creditors, and for the purpose of removing their property from the process of the court. Also that the levy and sale upon the executions under which the plaintiff claimed were irregular and therefore no title passed.

    These offers were severally objected to, upon the ground that they were inadmissible under the answer. The complaint alleged title in the plaintiff and the right of possession. The answer was *603a general denial; also the assertion of title in the Klinger Brothers. Since the case showed that the original title to the property was in the Klinger Brothers, and that the same passed to the plaintiff by judicial sale, the court properly denied the motion for a nonsuit and sustained the objections upon the defendants’ offers of proof, unless by the plaintiff’s own showing, or by the answer, it appeared that the defendants were in a position whereby the irregularities or fraud complained of could injure them.

    The direct issue between the parties was whether the plaintiff had title. She maintained her contention by showing that it passed to her from the'Klinger Brothers by judicial sale. That sale is presumed to be good, and is good against all the world, except the particular parties injured by it; if there are such parties they are an exception to the general rule, and if they desire to prove the facts bringing themselves within the exception, they should allege them.

    If the title was good against the Klinger Brothers it was good in favor of the plaintiff; it was good against them, unless they objected. They did not object. No one can object for them uniese he has succeeded, or is entitled to succeed, to their rights, and the assertion that any one is entitled to succeed to their rights is not embraced in a general denial, and therefore must be otherwise alleged. But the answer also alleges that the title was in the Klinger Brothers. In a complaint like this, which alleges title and does not allege possession, such an answer asserts a fact competent to be proved; because when the testimony is closed, if it should appear that the plaintiff did not have possession, and the Klinger Brothers did have title, the plaintiff would fail. But as this case stood upon the issue whether title was in the plaintiff or in the Klinger Brothers, the plaintiff had made a case against the Klinger Brothers, and the misfortune of the defendants was they had alleged nothing giving them the right to stand in the Klinger Brothers’ shoes and assail that case. !

    If the defendants, without asserting a right which the Klinger Brothers coirld waive, could prove a fact tending to show that the titlej never passed out of the Klinger Brothers, it would, upon the issue of title (not of possession), have been competent, as, for example,.' that the tobacco they seized was not the same parcel the plaintiff *604bought. Such evidence would show that the plaintiff’s evidence had not touched the property in dispute. ■

    There are many cases in the books bearing upon the questions we have discussed, in which the doctrine is broadly asserted that in actions of trover and trespass an answer of title in a stranger, without an allegation connecting the defendant with such title, is no defense. Stowell v. Otis (71 N. Y., 36), is referred to, by the aid of which the other cases can be traced. In that case the defendant answered, admitting the plaintiff’s title, but alleging that his wife was the plaintiff’s pledgee. The court, in substance, said to the defendant, by your answer you assert that1 your wife could defend, and thereby imply that you cannot. But suppose the defendant had denied both plaintiffs’ title and possession, and had alleged both in his wife? If the latter had been true, the plaintiff had no case. If the plaintiff shows possession, his right is not touched by the defendant’s showing that a third person has a better right of possession, hence the necessity of alleging in the answer that better right, and it remains untouched until he also proves that the third person’s better right is in some way also his right, and hence the necessity of this allegation. And if the plaintiff shows title, that title must be disproved; if it is in a third person it is not in the plaintiff, and lienee may be proved under a general denial; but it is not shown to bo in a third person by simply showing that there are facts within the command of the third person which could defeat the plaintiff’s title. The defendant must make the allegations which give him also the right to command these facts. Confusion in the cases sometimes arises from the fact that although the plaintiff alleges title, he proves possession. Possession cannot be disproved by proving title out of the plaintiff, and though the denial of title may seem to answer the ease stated, the defendant will fail unless his answer is framed to meet the case proved, for possession is evidence of title. The ruling of the court was right, unless upon the case made by the plaintiff, she had precluded herself from making the objections.

    In order to show why these defendants had been substituted in •place of the sheriff, the plaintiff read in evidence the defendants’ petition upon which the order of substitution was granted, and also the order. The petition recited the attachment, judgment, exeeu*605tion and seizure under which the defendants became the indemnitors of the- sheriff. It is urged that the plaintiff thereby knew all the facts, and having placed them in evidence they are in evidence generally for any purpose available to the defendants.

    The question is a new one in the aspect here presented. We are inclined to the opinion that if the defendants intended to rely upon such a defense they ought to have apprised the plaintiff of it, in which case she might have prepared to meet it, and she would perhaps not have read the petition in evidence.

    If the defendants were confined to their pleadings, the plaintiff could safely read the petition, and when she read it she had the clear right to suppose she was there to try the issues framed and not others. The defendants did not ask to amend their answer; if they had the plaintiff might as a condition have been permitted to withdraw the petition.

    The judgment should be affirmed, with costs.

Document Info

Citation Numbers: 43 N.Y. Sup. Ct. 601

Judges: Bockes, Landon, Learned

Filed Date: 5/15/1885

Precedential Status: Precedential

Modified Date: 2/4/2022