Opinion
May 4, 1949.
Appeal from Supreme Court, Otsego County.
Upon a judgment entered on confession of defendant White in favor of defendants Page, the sheriff levied on "all personal on farm" and sold plaintiff's share of personal property, as the jury could find, as well as her husband's. The notice of the sale, which the sheriff's records show was posted the same day as the sale, was insufficient. The statute requires posting six days in advance (Civ. Prac. Act, § 707). Plaintiff protested the sale. Defendants Page were present. It went on over her protest. The jury could find that the defendants Page, pressing their judgment, so acted in relation to the sale of plaintiff's interest as to become liable with the sheriff for conversion. ( Herring v. Hoppock, 15 N.Y. 409; Dyett v. Hyman, 129 N.Y. 351, 357.) The charge of the Judge sufficiently presented those questions which would have been for the jury under the pleadings and otherwise in accordance with the theories under which the case was tried, and was without exception in these respects by the defendants. There is no basis for a finding of tort liability against defendant White, who was a judgment debtor, not a creditor, under the sale and no special activity which would impose personal responsibility on him for conversion has been shown. Judgment affirmed as to defendants Page; judgment reversed on the law and complaint dismissed as to defendant White, with costs to plaintiff as against defendants Page, and without costs to defendant White against plaintiff. Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ., concur. [See post, p. 972.]