Opinion
January 9, 1952.
Appeal from Supreme Court, Washington County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The attack is on the sufficiency of the complaint, and the pleading is entitled to every favorable inference. It alleges that the Sheriff levied on property owned by plaintiff under an execution issued on defendant's judgment against a third party. It also alleges that the levy was made "at the express direction of * * * defendant"; that "on or about" the date of the levy defendant knew the property was owned by plaintiff and not the judgment debtor; that the Sheriff wrongfully kept the property for ten months "at the express direction of the defendant". Even if the pleading is not entirely clear upon the point that at the time of levy the defendant knew plaintiff owned the property, it does clearly plead the wrongful detention at the direction of defendant long after the knowledge of true ownership had been acquired. Such an active participation by a party in interest in a wrongful detention of property by a sheriff has been deemed actionable. ( White v. Page, 275 App. Div. 871; Herring v. Hoppock, 15 N.Y. 409; Dyett v. Hyman, 129 N.Y. 351.) Order unanimously affirmed, with $10 costs.