#### MARTIN RUSSELL, Appellant, *v.*ORVILL DEAN, Respondent.

*Exemption from execution*— when *it is waived by a failure to assert it*— *Oode of Civil Procedure, see.*1391.

Under an execution issued upon a judgment a constable levied upon a span of mules owned and used by the debtor in bis business of farming and boating. He was a householder and had no other team. It did not appear what other property he then had. He did not at the time the levy was made, or at any other time, claim that the mules were exempt.

*Held,*that he thereby waived any exeipptjjvi to which he might have been entitled under section 1391 of the Code of Civil Procedure.

*243Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.

*Howe c& Hice,*for tbe appellant.

*C. W. Avery,*for tbe respondent.

Smith, P. J.:

Replevin for a span of mules. Defendant justified as the bailee of one Ostrander who purchased tbe mules at a sale under an execution against tbe plaintiff. The plaintiff claimed that tbe mules were exempt from levy and that no title passed by tbe execution sale. Tbe case comes up on tbe report of tbe referee alone. Tbe referee found that tbe mules were used by tbe plaintiff as a team in bis business of farming and boating; that be bad no other team, and that they were necessary to him in bis said business, but it did not appear by the evidence what other property tbe plaintiff bad at tbe time of the levy. Tbe referee also found that so far as appears tbe plaintiff did not make any claim to tbe constable when the mules were taken, or at any other time, that they were exempt; and be did not at any time make such claim to tbe defendant, but before tbe commencement of tbe action be demanded tbe mules of the defendant and tbe defendant refused to give them up. Tbe referee held as matter of law that as it did not appear but that the plaintiff bad an abundance of household furniture and working tools equally within tbe $250 exemption, and as be at no time elected and claimed the mules to be exempt, be waived bis right of exemption and tbe defendant was entitled to judgment.

The real question presented is whether, in the absence of proof that tbe plaintiff had other property covered by tbe $250 exemption, bis omission to claim that tbe mules were exempt was a waiver of tbe exemption: Tbe present statute (Code of Civil Fro., § 1391) is substantially like that which preceded it (Laws 1842, chap. 157, as amended by chap. 782, Laws 1866) so far as tbe question in band is concerned. Under the former statute it was held in *Hoyt*v. *Van Alstyne*(15 Barb., 568), which was an action for tbe conversion of a mare, that evidence that tbe plaintiff was a householder, having a family for which be provided, and that the mare was all the team be bad and that it was used in prosecuting tbe business in which *244be was engaged-, was enough to entitle him to the exemption. In *Wilcox*v. *Hawley*(31 N. Y., 648) it was said by Davies, J., that “ it was sufficient for the plaintiff to show that this horse constituted' his team; that he was a householder, and that his household furniture, workman’s tools and team did not, in the aggregate, exceed in value the sum of two hundred and fifty dollars.” But that remark was not intended to overrule *Hoyt*v. *Van Alstyne,*for the same judge also said that the view taken of the statute in that case was correct. It is probable that the precise question now up was not discussed by counsel in either of those cases. In *Seaman*v. *Luce*(23 Barb., 240) it appeared that the debtor had more than two horses, which were worth in the aggregate more than the exempt value fixed by the statute, and it was held that the officer levying on one of them was not a trespasser, unless the debtor claimed at the time that the horse levied on was exempt. In *Smith*v. *Slade*(57 Barb., 637) it was held that it was not necessary for the plaintiff to show affirmatively that he had not other articles exempted by statute of the. value of $250, or which, with the articles mentioned in the complaint, exceeded that sum. But in that case it was shown that the plaintiff claimed the property at the time <ff the sale as exempt from levy and sale on execution, and forbade the sale on that ground, mentioning each article by name. In *Lockwood*v. *Younglove*(27 Barb., 506), JohnsoN, J., said: “The position now taken is that before a party can recover for property taken on execution, as exempt property under the- act of 1842, he must show that he has not other property which-may be exempt under the act.” • To that position the learned judge said there were two conclusive answers in that case: *“*In the-first place no such question was raised upon the trial.” Second. That “ the horse in question was claimed by the plaintiff as exempt property, and the sale forbidden on that ground.” Neither of those answers to the position exists in the present case. On the whole we think the Correct conclusion is that it not having appeared either that the plaintiff had not other property exempt under section 1391 of the value of $250, or that he at any time claimed the property in question to be exempt, such property must be deemed to have been in fact liable to execution. Assuming that he had .other property which was exempt under section 1391, he -waived his claim to the statutory *245provision in bis favor in respect to tbe property in question by omitting to assert it. Tbe case of *Frost*v. *Mott*(34 N. Y., 253), cited by tbe appellant’s counsel, related to property wbicb was specifically and absolutely exempt under tbe Revised Statutes. In *Cantrell*v. *Conner*(51 How., 45) tbe case of Frost is cited as the sole authority, and to tbe extent of that case only are we disposed to follow tbe decision in Cantrell’s case.

These views lead to an affirmance, and tbe same result may be reached by another way. Tbe referee found that the demand upon wbicb the judgment was recovered, to enforce wbicb tbe execution, by virtue of wbicb tbe mules were sold was issued, was a promissory note given to the defendant for the price of a team bought of him by tbe appellant and one Post; and that at tbe time of such purchase tbe appellant bad no other team than one bay mare worth fifty dollars, but that he made a team of that and one owned by bis father-in-law. It does not appear what use tbe team purchased of the defendant was put to. It not appearing that the appellant and Post purchased as merchants or dealers in horses, it may be assumed that tbe team sold was of tbe class of property exempt by tbe act of 1842, and copsequently any article exempt by that act was liable to levy to satisfy a judgment recovered for tbe price of such team. *(Hutchinson*v. Chamberlin, 11 N. Y. Leg. Obs., 248; *Cox*v. *Stafford,*14 How. Pr., 519.) There are no other questions in tbe case requiring discussion.

Tbe judgment should be affirmed..

HaRDIN and BaeKeb, JJ., concurred.

Judgment affirmed.