#### Elizabeth Carter, appellant, *v.*Peter Bowe, Sheriff, etc. *et al.,*respondents.

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

*Filed October 15,*1886.)

1. Sheriff — Liability of — When judgment in actioN against bondsmen on undertaking a bar.

This was an action brought to recover the value of certain goods, mortgaged and assigned to the plaintiff, which were seized under executions issued upon judgments recovered against the mortgagor, and by way of defense it was claimed that the property in fact belonged to him. The mortgages were duly filed. As to a portion of the property seized and sold, a preceding action resulted in favor of the defendants therein, who were the parties to a bond given to the Sheriff to indemnify him for the seizure and sale under the execution. *Held,*that as to such property, that judgment was a bar to this action against the Sheriff, but was inoperative as to the residue.

2. Pleading — What allegations necessary in answer to admit EVIDENCE OF FRAUD.

It was not necessary for the defendant to allege in his answer that the mortgages were fraudulent, in order to be permitted to put in proof of that fact, it was only necessary to allege the property to be that of the judgment debtor, and any evidence legally pertinent to prove that fact was ad- , missible under the answer.

*163. EVIDENCE — MEMORANDUM — WHEN WITNESS CAN REFRESH MEMORY BY REFERRING TO.

Where liberty was refused a witness to look at a memorandum to refresh his recollection as to articles left at the stores of one of plaintiff’s assignors, on the ground that the memorandum had not been identified. *Held,*error, that the plaintiff had the right to have the memorandum consulted by the witness, and to the testimony he might give after referring to' it.

4. Same — Testimony taken on supplemental proceedings, not admissible when.

Where the defendants were permitted, against objection, to prove what the mortgagor had testified to in supplemental proceedings carried on against him, and to which the plaintiff herein was in no sense a party, such statements were not proved to contradict denials made concerning them, but as substantive evidence in the case tending to defeat the plaintiff’s title. *Held,*error.

Appeal from a judgment recovered on tbe verdict of a jury, and from an order denying a motion for a new trial, and an order making an additional allowance of costs in the sum of $2,000.

*Greorge P.*Avery, for appl’ts.; *Charles F.*MacLean, for res’pt.

DANIELS, J.

The action was to recover the value of goods contained in stores leased to Wellington A. Carter and mortgaged in part to his wife and in part to Josephine S. Clason, and assigned by her to his wife, who is the plaintiff in the action. She also claimed to recover for other property asserted to have belonged to individuals assigning the same to her, after the taking and appropriation of it by the defendants. This property was all seized under executions issued upon judgments recovered against the mortgagor, and by way of defence it was claimed that the property in fact belonged to him. The two mortgages were filed, as that was required to he done by the statute, but the evidence tended to show that the mortgagor remained in the possession of the stores. That fact, however, was controverted by evidence on behalf of the plaintiff to the effect that it was under the charge and superintendence of a person acting for her in the stores. As to a portion of the property seized and sold, a preceding action was brought and tried in the second district. Upon that trial a verdict was recovered by the defendants in the suit, who were the parties to a bond given to the sheriff to indemnify Mm for the seizure and sale of the property under the execution. As to such property the court held the judgment to be a bar to this action against the sheriff and his deputies. And to that extent the ruling appears to have’ been correct. For a recovery in this action for the same property against the sheriff, if that could have been had, would 'have entitled him to maintain an action for indemnityupon the bond against the defendants in that suit, and in that manner deprive them of the effect of the judgment which had been recovered in their favor for the same taking. And to avoid that result *17tbe sheriff was entitled to rely upon, tbe judgment for bis protection, wbieb bad been recovered in favor of these bondsmen. But as to tbe residue of tbe property seized and sold after tbe seizure complained of in tbe preceding action, tbe judgment was not operative, but tbe controversy was open to evidence upon tbe pomt whether tbe property seized was liable to be taken and sold to satisfy executions issued against tbe mortgagor. Tbe right of tbe sheriff to seize tbe property under tbe execution depended upon tbe question whether tbe mortgages were made in good faith and without any intent to hinder, delay, or defraud tbe creditors of tbe mortgagor, and whether property belonging to tbe plaintiff’s assignors bad been seized and sold under the executions. Tbe mortgages and transfers were not alleged in tbe answer to have been fraudulently made, but that was not necessary, and nothing said in tbe case of *McKinley*v. *Bowe,*97 N. Y. 93, requires that to be done to admit proof of that fact. What was legally necessary was that tbe answer should allege tbe property to be that of tbe judgment debtor, as it did, and any evidence legally pertinent to prove that fact was admissible under tbe answer. And proof tending to establish the fact that tbe mortgages were fraudulent, did tend to prove that tbe mortgagor was tbe owner of tbe property, so far as to render it subject to executions issued against him. This has been tbe course of proceeding for many years, not only unquestioned, but sanctioned by tbe courts, and the answer in this action must accordingly be held to have been sufficient.

In submitting tbe case to tbe jury tbe legal points upon which it depended were clearly stated to them by tbe court, but rulings were made upon evidence excluded and received which do not appear to be capable of being sustained. Among these was tbe ruling sustaining tbe objection that tbe witness, Wellington A. Carter, could not look upon a memorandum produced upon tbe trial, to refresh Ms memory, so that be could state tbe articles which bad been left in one of tbe stores by Mr. Aymar, who was one of tbe plaintiff’s assignors. Liberty was refused tbe witness to answer tMs question on the ground that tbe memorandum bad not been identified, but that objection was not well taken; for whatever tbe memorandum may have been, if it would refresh tbe recollection of the witness, so that be could state tbe articles winch were left, tbe plaintiff bad tbe right to have that memorandum consulted by Mm, and to tbe testimony be might be able to give after referrmg to it. Tbe object of tbe inspection, or examination, of tbe memorandum was to revive tbe memory of tbe witness, and whatever it may have be'en, if it would have been attended with that effect and tbe plaintiff was entitled to an opportunity to prove that it would, tbe witness bad tbe right to look at it. *Dowe*v. Per*18
      *kins,*8 Durn & East, 409: *Biglow*v. *Hall,*91 N. Y. 145: *Marcly*v. *Shutts,*29 N. Y. 346.

Tbe defendants were also permitted, against tbe objection and exception of tbe plaintiff, to prove what tbe mortgagor bad testified to in supplemental proceedings carried on against him and to which tbe plaintiff was in no sense a party. These statements as to her consisted of no more than bis declarations, and they were not admissible as evidence against tbe plaintiff. *Walker*v. *Henry, 85*N. Y., 130.

They were not proved to contradict denials made concerning them in the course of tbe examination of tbe witness, for winch, after be was interrogated concerning them, they might very well .have been proper, but, as substantive evidence in tbe case, tending to defeat tbe plaintiff’s title, they were not in this form lawful evidence against her, and should have been excluded. Tbe plaintiff’s case was also illegally prejudiced by answers allowed to be given concerning other property, and premises previously occupied by him. As to one of those places tbe witness was allowed to answer tbe question whether be was a prompt rent payer. Tbe statements, or representations, of tbe mortgagor concerning tbe fact that be represented Josephine E. ■Clason, and in that capacity promised to take care of a mortgage upon certain real estate not connected with the action, and ■other transactions were drawn in by way of evidence having no relevancy whatever to the action, or the credit of the witness. The object of this evidence seems to have been to create a prejudice in the minds of the jury against the mortgagor, inducing them in that manner to reject the plaintiff’s claim for indemnity for the property seized and sold as his under the executions. This course was not justifiable. The object of the law is to secure the administration of justice between contesting claim.ants, upon the evidence given to develop the facts logically and legally bearing upon that disposition. It is not its purpose, by means of irrelevant and foreign matters, to permit one party to .defeat another, either by holding him up to ridicule before the jury, or biasing their judgment by entirely foreign and extrane'ous.matters. In these respects the plaintiff has a legal ground for complaint concerning the manner in which her action was tried at the Circuit. And on that ground, as well as the exclusion of pertinent evidence offered to be given in her behalf and the admission of illegal evidence against her, the judgment .should be reversed and. a new trial ordered with costs to abide the event. And as that will dispose of the order making the ad■ditional allowance of costs, no further attention need be given ;to that subject.

BpuADY J., concurs.