#### Warren Chapin, Pl’ff and Resp’t, *v.*James M. Fitzgerald, Def’t and App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Attachment—Liability of plaintiff in an execution fob a wrongful LEVY AND SALE BY THE SHERIFF.

Whether the plaintiff in tide execution is present at a wrongful levy and sale by the sheriff -upon goods not the property of the defendant in the execution, and thus, presumably, assents to the levy and sale of such goods, he is liable for damages in an action by the owner of the goods for trespass and conversion, and the sheriff need not be joined as a party defendant in the action.

2. Indemnity bond to sheriff not necessary in such case to fix plaintiff’s liability.

An indemnity bond is not necessary to have been given to the sheriff in such case in order to fix the liability of the plaintiff to the owners of the property wrongfully seized and sold.

3. Sale—Personal property—To pass title to, requires delivery to, AND ALSO ACCEPTANCE BY THE VENDEES.

To pass the title to personal property requires not only delivery by the vendors, but acceptance by the vendees. The delivery is not complete until the goods are accepted. Where the goods are delivered in installments, there is no occasion for the vendees “ to repudiate ” the delivery of the first installments of the goods, or to do anything about it until the whole of the goods are delivered, and opportunity allowed vendees to examine whether their order had been complied with.

4. Evidence—Proof of other judgments against defendant in the EXECUTION NOT EVIDENCE.

The evidence offered of other judgments against the defendant in the execution was properly excluded, as there was no evidence that the prop • erty in question ever belonged to him, but the contrary.

Appeal from a judgment of $898.48 and costs, recovered by the plaintiff against the defendant for trespass upon and conversion of certain merchandise.

The Geo. W. Cross Blank Book Manufacturing Company sold and shipped the goods in question “to Howard Bros. & Co., 162 West Broadway, City,” prior to the levy by the sheriff upon the goods, and on the same day sent bills of them to the vendees. The goods were shipped pursuant to a previous order by Howard Bros. & Co., by propeller “Tarry-town,” to care of A. B. Jersey & Bro., truckmen in New York,” with instructions in writing “ to deliver them to Howard Bros. & Co. on their arrival.” The goods were taken by the truckmen to Howard Bros. & Co.’s store, in fifteen cases, the truck making two separate loads, depositing the first load on the sidewalk of Howard Bros. & Co.’s store, leaving the goods in charge of their porter, and returning for the balance, arrived at the store with the goods on the truck, when the sheriff, the defendant being person*601ally present, made a levy upon all the goods; those on the sidewalk in front of the store, and also those on the truck in the street ready to be delivered, and the goods were taken to the sheriff’s store and subsequently sold by him, and the proceeds paid, after deducting his costs, to the plaintiff in the execution.

The levy and sale were made by the sheriff, by virtue of an attachment and execution issued upon a judgment in an action in which the defendant in the suit at bar, James M. Fitzgerald, was plaintiff, and “ The Geo. W. Cross Blank Book Manufacturing Company,” was defendant.

The issues in the suit at bar were referred to a referee, who found that the goods in question were at the time of the levy and sale by the sheriff, the joint property of Herbert R. Coffin, C. H. Dexter & Sons, The Pettibone Paper-Company, Frank A. Southworth and Marcus L. Bulkley, who, subsequent to the levy and sale by the sheriff, assigned their respective interests therein to Warren Chapin, the plaintiff in this suit.

*Edward P. Wilder,*for app’lt.

I. The property in the goods levied upon was not in the plaintiff nor his assignors at the time when the alleged trespass was committed, but had passed to Howard Bros., to whom they had sold and delivered the goods. Ho court can say upon any evidence in this record what goods were contained in the first seven or eight cases, nor how their value would compare with those left on the truck. This judgment cannot be split up, modified, or reduced. If it is excessive, a new trial must be ordered. *Jennings*v. *Van Schaick,*13 Daly, 7.

There was a sufficient delivery to Howard Bros, to change the title. *Bradley v. Wheeler,*4 Rob., 18; see *Olyphant*v. *Baker,*5 Denio, 379.

*“*The voluntary surrender by the vendor of all dominion over the property is, as a general rule, inconsistent with the idea that the title is retained by the vendor.” *Cornell*v. *Clark,*104 N. Y., 451, 456; 5 N. Y. State Rep., 772. See *Burrows*v. *Whitaker,*71 *N.*Y., 291; *Bailey*v. *Hudson River R. R. Co.,*49 id., 74; *Price*v. *Powell,*3 id., 322; *Krulder*v. *Ellison,*47 id., 37.

Part of the goods having been delivered, even though the residue, still on the truck, were not, the title to the whole passed to Howard Bros. *Lees*v. *Richardson,*2 Hilton, 164; *Bradley*v. *Wheeler (supra)*.

A delivery to the carrier in the ordinary way of business is presumptively sufficient delivery to transfer title to the vendee. *Mee*v. *McNider,*39 Hun, 345; *Price*v. *Powell (supra);*and, see *Thompson*v. *Fargo, 40 N.*Y., 188; Angell on Carriers, § 497; *Sweet*v. *Barney,*23 N. Y., 335; *Becker*v. *Hallgarten,*86 id., 174.

The delivery of goods to a carrier, with intent to make an unconditional delivery thereof to the consignee pursu*602ant to a contract of 'purchase, is sufficient to pass the title, whether the goods reach the consignee, or not. *Stanton*v. *Small,*3 Sandf., 230; *Brown*v. *Bowe,*35 Hun, 488; *Mee*v. *McNider,*39 id., 345; *Heine*v. *Anderson,*2 Duer, 318; *Kimberly*v. *Patchin,*19 N. Y., 330.

II. The law requires some active interference and direction on the part of the creditor in a writ, in order to supersede the authority of the sheriff, or make the sheriff his agent. The mere presence of Fitzgerald does not make him a trespasser. *Welch*v. *Cochran,*63 N. Y., 381; *Clark*v. *Woodruff,*83 id., 526; *Bowe*v. *Wilkins,*105 id., 322; *Simon*v. *Fleischauer,*23 Wk. Dig., 514.

It should require very clear evidence to charge homé to other persons a liability for the acts of the sheriff on the theory of *“respondeat*superior,” or fellow-trespasser. *Combs*v. *Scott,*12 Allen, 493.

To hold one responsible for a tort not committed by his orders, his adoption of and assent to the same must be clear and explicit, and founded on a clear knowledge of the tort which has been committed. *Adams*v. *Freeman,*9 Johns., 117; *West*v. *Shockley,*4 Harring., 287; *Kreger*v. *Osborn,*7 Blackf., 74; *Abbott*v. *Kimball,*19 Vt., 551; 6 Wait’s Actions and Defenses, 47.

And this rule is not affected by the fact that the defendant has received the money coming by means of the tort, from his servant. *Clark*v. *Woodruff (supra); Hyde*v. *Cooper,*26 Vt., 552.

*L. T. Kale,*for resp’t.

Pratt, J.

Appellant is in error in contending that the title to the goods had passed to Howard. The trackman was the agent of the vendor, not of the vendee.

To pass the title, required not only delivery, but acceptance. No claim is made that the goods had been accepted, and the case of *Kein v. Tupper*(52 N. Y., 550), is authority to show that even as to the first load of goods the delivery was not complete. No occasion existed for Howard & Co. to “repudiate the delivery,” or to do anything about it. Not until the whole lot of goods was delivered to them, and opportunity allowed them to examine whether their order had been complied with, were Howard & Co. under obligation to accept or refuse the goods. That time never arrived.

The evidence on which defendant was held liable for the trespass was sufficient for that purpose.

The attachment was at the instance of the defendant, and for his benefit. He had prompt notice of what was done, and never dissented.

The attachment and sale were ratified by him when he accepted the proceeds.

If it be said that he was mistaken in the ownership, so was the sheriff. No indemnity bond is necessary to fix the *603liability, of the plaintiff in the execution where he is present in person at the wrongful levy which proceeds by his procurement.

The evidence offered of judgments recovered against Cross was properly excluded. It did not appear that the property in suit had ever belonged to Cross, but the contrary.

The judgment should be affirmed, with costs.

All concur.