Opinion
July Term, 1896.
Benjamin N. Cardozo and Burritt S. Stone, for the appellant.
B.F. Einstein, for the respondent.
Present — BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ.
The only party defendant to this action was Lewis Mayer. Ruscher Muller, in whose possession the tobacco which is the subject of the action was, are not parties to the action, and there is nothing in the papers upon which this motion was made tending to show that they are agents of the defendant, or have any connection with him whatever. The requisition upon the sheriff authorizes the taking of the property only from the defendant named in the action, or his agent. It is no protection to him if he takes the property from any other person. ( Otis v. Williams, 70 N.Y. 208; Bullis v. Montgomery, 50 id. 352.) Ruscher Muller being neither parties to this action nor to the motion, the order to the sheriff requiring him to take the property from their possession would be no protection whatever to him in an action brought by them for the trespass which he must necessarily commit in executing against their property process which had been delivered to him against the property of another person. There is nothing in the facts shown upon this motion, from which it can be inferred that the proceeding was taken under chapter 633 of the Laws of 1895, and consequently the provisions of that statute need not be considered. No foundation was laid for the granting of such an order, and it must be reversed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements.