#### Vita Milella, Appellant, *v.*Charles A. Simpson and Carmelo Antonio Porrazzo, Respondents.

(Supreme Court, Appellate Term,

June, 1905.)

Conversion — Wrongful levy — Instructions to marshal — Municipal? ■ Court declaring bill of sale fraudulent not exercise of equity powers — Opinion of court no part of record.

Where the evidence in an action brought in the Municipal Court for an alleged wrongful levy upon a horse, harness and wagon claimed not to belong to the judgment debtor, warrants a finding that the plaintiff in the execution gave no specific instructions toi the marshal as to such levy, he is not liable for the acts of the-marshal.

The trial judge in such action by declaring fraudulent the bilP of sale under which plaintiff claims, did not assume to exercise equity powers prohibited by section 2 (2) of the Municipal Court Act.

The opinion of the trial court is no part of the record on appeáí and if its judgment can he sustained it is not essential that it should he upheld upon the specific grounds stated by the trial judge..

Appeal by the plaintiff from a judgment rendered in favor of the defendants in the Municipal Court of the city of Mew York, fourth district, borough of Manhattan.

*691Louis Levine, for appellant.

Edward J. Kelly, for respondents.

*Per Curiam.*

This action was brought in conversion for damages for the alleged wrongful taking of certain personal property which the plaintiff claimed to own. The defendant Simpson was one of the city marshals, and the defendants justified the taking by virtue of an execution issued upon a judgment in the Municipal Court obtained by the defendant Porrazzo against one Martin Mellella, a son of the plaintiff, and who the defendants alleged was the owner of the property in question. The plaintiff’s claim to the ownership of the property rests upon an alleged purchase said to have been made by the plaintiff from his son on July 25, 1904, and evidenced by a bill of sale offered and received in evidence and dated on that day. The judgment under which Simpson made the levy was entered August 25, 1904, and the levy by Simpson under the execution was made upon the day following the entry of judgment. The evidence was sufficient to warrant the court below in finding that the defendant Porrazzo, the plaintiff in the execution, gave no specific instructions to the marshal as to the levy made by him, and, therefore, he was not liable for the acts of the marshal. Siersema v. Meyer, 38 Misc. Rep. 358. We also think that the plaintiff failed to sustain the burden of proof cast upon him of showing good faith and an absence of intent to defraud creditors in his alleged purchase of his own son’s property. The son at the time of the alleged sale by him of the property in question was in business for himself, and had the property, consisting of a horse, harness, and wagon, in his possession. There is evidence from which the court might find that when the levy was made the property was still in the possession of the son, and there is no evidence that plaintiff ever took possession of such property, nor did he give any reason for allowing the same to continuously remain in the possession of the son after his alleged purchase. The name of the judgment debtor was upon the wagon, and the marshal and another witness testified that the son, when the *692levy was made, stated in the presence of the plaintiff, that he (the son) owned the property. The trial judge in a memorandum declared the bill of sale to be a fraudulent one, and stated in substance that the word “ July ” in the acknowledgment thereto seems to have beén written over an erasure of the word “August,” showing the paper to have been executed the day the judgment was rendered. By declaring in an action of this kind that the bill of sale was fraudulent the court does not thereby assume to exercise the powers of a court of equity as prohibited by section 2, subdivision 2, of the Municipal Court Act. The plaintiff’s claim to the disputed property rested wholly upon his alleged purchase, and it was purely a question of fact to be determined from all the facts and circumstances disclosed by the evidence whether or not such purchase was made in good faith and without intent to defraud creditors. Moreover the opinion of the court is no part of the record, and if the judgment can be sustained it is not essential that it should be upheld upon the specific grounds stated by the trial judge, although in the case at bar the testimony is sufficient to warrant the assertion made that the bill of sale was fraudulent.

Present: Scott, Dugbo, and MacLeak", JJ, •

Judgment affirmed, with costs.