majority">

By the Court,

James, J.

The motion for a.nonsuit was properly denied. It was made clearly to appear that the property which the defendant took and sold was exempt from levy and sale on execution. I cannot find any thing in the case, on which to sustain the other ground for nonsuit. If it was based on the idea that the execution contained a direction excepting exempt property from its operation, that fact should have appeared in the case, either by statement, or a copy of the writ set forth, in order to raise the point on appeal. In the absence of all evidence of such exception, the court cannot assume that the writ contained such a direction, although that may be the usual form. Therefore the point cannot be considered.

An application for leave to amend- a pleading on the trial,. *98is always addressed" to the discretion of the court, and if denied is not the subject of appeal or review. (Phincle v. Vaughan, 12 Barb. 215. New York Marbled Iron Works v. Smith, 4 Duer, 362. Hendricks v. Decker, 35 Barb. 298.)

The complaint in this case set forth the whole grounds of the plaintiff’s cause of action,, viz : That the defendant was sheriff; Rue, his deputy • the taking -and conversion of property under and by virtue of an execution -against him, and that such property was exempt. It set forth more than, was necessary. The cause of action was complete without any statement of the reason or authority for taking the property,, and its exemption. (Butler v. Mason, 16 How. 546.) Such allegations were no part of the gist of the cause "of action, and were not necessary to be proved in the first instance to entitle the plaintiff to recover. (Bedell v. Carll, 33 N. Y. Rep. 581. Esselstyn v. Weeks, 2 Kern. 635. Sands v. St. John, 36 Barb. 628, 31.) The proof of such facts could only become necessary to meet a defense, and could thus be given in evidence without having been pleaded. (Esselstyn v. Weeks, supra.) Therefore the averment of these facts in the complaint did not impose upon the defendant the necessity of averring in his answer any facts other than such as were necessary to answer the material allegations of the complaint. In other words, the defendant was not compelled to set up in his answer the non-exemption of the property sued for, or be excluded from proving it on the trial, merely because the plaintiff averred its exemption in the complaint. The Code only requires the conaplaint to contain a plain and concise statement of the facts constituting the cause of action; in this case, that the defendant, by his deputy, took and converted his property, and its value. An answer is required to contain only a general or specific denial of each material allegation, or the statement of new matter constituting a defense or counter-claim. ■ In this case, the real defense was new matter—-a justification- under a judgment and execution. But as the defendant was an officer, if he relied entirely upon *99the execution, and nothing beyond it, it was sufficient for him in such case merely to set forth the writ; but if he desired to go further, or it became necessary to inquire into the consideration of the judgment, it would be necessary to plead such judgment and set it forth in his answer, and having averred the existence of a judgment he would be at liberty to prove it; and would then be at liberty to show its considertion, without having averred it, if material to answer any fact proved by the plaintiff.

The theory of such a trial is this : The plaintiff having averred the tortious taking of his property by the defendant, proves the act and the damage, and rests. The defendant having set up that he took it as an officer, by virtue of an execution against the plaintiff’s goods and chattels, proves such execution, and rests. The plaintiff then, (as he may without averment, because the Code allows no reply to new matter constituting a defense in an answer,) proves that he is a householder, with a family, and' that the property taken was his team; that would take the property without the execution. Then before the defendant can be permitted to overcome this, by proof of the consideration of the judgment, he must first establish his judgment. The existence of the judgment was new matter, and required to be pleaded. If the property in controversy had not been exempt property, an execution, fair on its face, would protect the officer, even though there was no legal judgment to back it; and therefore the existence of a judgment for that purpose need not be averred. This is merely for the personal protection of the officer executing process ; but when the officer sees fit to go beyond the power of the process, or for any other reason, whensoever it becomes necessary for him to prove a judgment, he, no more than any other party, can do so, without having pleaded its existence in the answer.

Therefore for the reason that the judgment on which the execution issued was not set up in the answer, the judge at circuit was right in refusing to allow the defendant to show *100its consideration as a defense to the plaintiff’s claim of exemption from levy and sale on execution of the property in suit.

[St. Lawrence General Term,October 2, 1866.

Judgment affirmed.

Bockes, James, Rosekrans and Pottter, Justices.]

Citation profile

Relationships

How this case has been treated — in progress