Kern v. Towsley. Previous to the date of the contract, one of the assessors had entered the property upon the assessment roll in the name of the plaintiff. After the contract was entered into, the plaintiff saw this assessor, and informed him of the contract and directed him to assess the property to the defendant. The assessor saw the defendant on the subject, who refused to have the assessment made against him, and it was continued on the roll as first entered. The assessors of the town met on the 20th of August, 1863, to complete the assessment roll, and completed it, with the property assessed to the plaintiff. It was delivered by them, completed, to the supervisor, on the 1st of September, 1863. The defendant refused to pay the tax, and the plaintiff was compelled to pay. The amount assessed and paid, including collector's fees, was about $70. The plaintiff recovered a judgment before the justice for the amount paid, which, on appeal to the county court, was affirmed. Looking at all the provis no doubt that the parties The judgment is clearly right. ions of the contract, there can be contemplated and intended the tax for that year, which was then in progress of being made and completed. Certainly they intended some tax, and there is nothing to show that it did or could refer to any other. By the terms of the contract, if the defendant performed on his part, the property was to be conveyed to him in less than one month from its date. It was so conveyed, before the assessment in the town was completed, and on the day stipulated. Clearly I think this was the assessment and tax referred to in the contract. The plain meaning and intent are, that the defendant should pay all such sums as should be assessed and taxed against that property after the defendant became purchaser. The assessment was not then completed, nor the amount of the tax fixed, and the parties knew, or are at least presumed to have known, that the tax for the then current year could not be ascertained and determined so as to amount to a claim against any one, until long after the conveyance was to be made, 456 152 33ap279, 45b 1522 50ad134 Pond v. Leman. according to the terms of the contract. Until the assessments are completed so that the amount of tax can be ascertained or determined, no tax can be said to be assessed or taxed on premises. Great stress is laid by the defendant's counsel upon the last clause of the stipulation-"all taxes and assessments that shall be taxed or assessed on said premises from the date hereof." This it is insisted excludes necessarily, by its very terms, assessments previously made, in whatever stage of completeness or incompleteness such assessment may then have been. But it is most manifest that the parties intended by the stipulation the tax for the then current year. They could not have intended the year succeeding, as by the terms of the contract the defendant was to have possession, and title, within a very few days from its date, and it is absurd to suppose that they were agreeing about taxes in future years, which must necessarily be assessed against the defendant. Judgment must be affirmed. [MONROE GENERAL TERM, December 4, 1865. Johnson, E. Darwin Smith and James C. Smith, Justices.] POND VS. LEMAN. A sheriff is liable for all the acts of his deputy, official in their character, in A sheriff is liable for the acts of his deputy in levying upon the goods of per- THIS was an action for the wrongful taking and detention of a horse, in which the plaintiff claimed property and the right to the possession. The answor justified the taking Pond v. Leman. and detention of the horse by him, as sheriff, by virtue of executions issued against the property of Anthony and Theodore D. Yorks; the answer alleging that the horse belonged to said Theodore D. Yorks. On the trial, the plaintiff showed that the defendant was sheriff of the county of Livingston at the various times in the complaint stated. That one Adolphus Nash was his deputy at these same times. That on the 11th day of August, 1864, there was delivered to said deputy sheriff as aforesaid, three several executions against property, in the usual form of executions for the enforcement of judgments in civil actions, all of which were in the Supreme Court, directed to said sheriff, and required him to make the same out of the property of Anthony Yorks, or Anthony and Theodore D. Yorks, being the same executions referred to in the answer. That said Adolphus Nash, at the time of the receipt of said executions, indorsed them severally as follows: "Received Aug. 11, 1864, at 8 o'clock, P. M. W. B. Leman, sheriff, by A. Nash, deputy." The plaintiff called said Nash as a witness, who testified that he proceeded with said executions to the residence of said Anthony Yorks, in the village of Lima, on whose premises the property in the complaint specified then was, and there levied upon the same under said executions, but did not remove the property. That at the time of said levy, he was informed that it was the property of the plaintiff. The same witness testified, on cross-examination, that he never had the horse in his actual possession further than to have him in his eye, at the time of the levy; that he left him in the possession of Anthony Yorks, at his request; that the sheriff was not present at the levy, and never had the horse in his possession; and that the witness never received any instructions from the sheriff, about the horse. The plaintiff gave evidence tending to show that he was at the time of the levy in question the owner of said property. The same exceeded $50 in value. The property had been returned to Pond v. Leman. the plaintiff, by virtue of the proceedings herein. The defendant moved for a nonsuit, upon the grounds, 1st. That the property was not actually or constructively in the defendant's possession. 2d. That there was no proof that the defendant intermeddled with the property. His Honor, the Judge, held that the defendant was not liable for the acts of his deputy, in levying upon the property of the plaintiff by virtue of executions against other parties, it not appearing that he had in fact directed or ratified the act of the deputy in so levying; and upon that ground granted the motion, and nonsuited the plaintiff. The plaintiff excepted to such decision. The court ordered a stay of proceedings for sixty days, in order that the plaintiff might prepare a case or bill of exceptions, and directed that the same should be heard in the first instance at the general term of this court, judgment in the mean time to be suspended. Geo. F. Danforth, for the plaintiff. Wood & Nash, for the defendant. By the Court, JOHNSON, J. The plaintiff was nonsuited at the trial upon the ground that the defendant, as sheriff, was not liable for the acts of his deputy in levying upon the goods of persons not parties to the execution, it not appearing that he had in fact directed or ratified the act of the deputy in so levying. It has been long well settled that the sheriff is liable civiliter for all the acts of his deputies done in the usual course of their business of deputies, prescribed by law. The deputies are all servants of the sheriff, and in law they are considered but one officer. (Allen on Sheriffs, 81, 86.) That the sheriff is liable in an action of trespass vi et armis for the act of his deputy in taking the goods of one person to satisfy the debt of another, upon execution; has Pond . Leman. been uniformly held to be law, at least ever since the case of Ackworth v. Kempe, (Doug. 40,) where the precise point was expressly adjudged. (Grinnell v. Phillips, 1 Mass. Rep. 530. Campbell v. Phelps, 17 id. 244. Tuttle v. Cook, 15 Wend. 274. Curtis v. Fay, 37 Barb. Walden v. Davison, Id. 575. 64. McIntyre v. Trumbull, 7 John. 35.) In the last case the court went so far as to hold the sheriff liable for the act of the deputy in taking more fees on levying an execution than are allowed by law; and this whether the sheriff recognized the act of the deputy or not. (See also The People v. Schuyler, 4 Comst. 173.) The levy of an execution for the purpose of collecting it, by a deputy, is an official, and not a mere personal, act. And for all such acts the sheriff is liable for the act of the deputy, though it turns out that the act is not justified by the process. There are a class of cases, where the plaintiff in the execution has given the deputy some special directions out of the ordinary line of his duty as deputy, which the deputy has followed, in which it has been held that the sheriff was not liable for such acts of his deputy. This is upon the ground that by following such instructions instead of the line of duty prescribed by law, the deputy became the mere agent of the plaintiff, and his acts personal and not official in their character. But this is no such case. The sheriff is liable for all the acts of the deputy, official in their character, in executing process, whether he knew the deputy had the process or not. It would be a most dangerous and oppressive rule to hold that a plaintiff before he could recover of a sheriff for the wrongful act of the deputy, must prove that the former directed or sanctioned the act. There must be a new trial, with costs to abide the event. [MONROE GENERAL TERM, December 4, 1865. Johnson, E. Darwin Smith and James C. Smith, Justices.] |