Betts vs. Hoyt, 19 Barb. 412

By the Court, Harris, J. The allegation in the answer that the sale was made by the order and direction of the plaintiff and of Raymond also, is not supported by proof. The plaintiff, by virtue of his prior levy, had a special title to the property sold. The defendant, by virtue of his prior levy, had a right to sell. He might sell subject to the prior levy, or he might sell absolutely, assuming to satisfy the prior lien. He chose the latter course. Having sold enough to satisfy the execution held by the plaintiff, he became liable to the plaintiff for that amount.

It was the plaintiff that had the lien on the property sold, and not Raymond, the plaintiff in the executions. Raymond could look to the plaintiff alone for the fruits of his levy. There was no legal relation between Raymond and the defendant. The plaintiff, as an officer holding executions against the debtor of Raymond, was so far his agent that the money collected upon those executions might be taken upon an execution against Raymond in his hands, as well as if it had been in the hands of Raymond himself. But it was not so with the defendant.

The money which he held for the purpose of satisfying the plaintiff’s lien upon the property he had sold, was not liable, in his hands, to an execution against Raymond. It would be no answer to an action by Raymond, against the plaintiff, for not collecting bis executions, that the defendant had sold the property upon which he had levied, and had applied the proceeds of the gale to satisfy an execution he held against Raymond. Indeed this is not claimed by the defendant.

The theory of the defense is, that the defendant received the money “ as the agent of Raymond duly constituted and appointed by him to receive the same, and with the express consent and authority of the plaintiff, and that while the money was in his hands, as such agent, he levied upon it by virtue of the execution against Raymond.” We have already seen that the defendant has failed to sustain this defense by proof. [Albany General Term, December 5, 1853.

Parker, Wright and Harris, Justices.] Had it been necessary to prove an express promise to pay the amount of the executions, I think the variance between the proof and the allegation in the complaint might have been fatal to the recovery. The allegation is, that the defendant absolutely promised to pay the amount of the executions. The proof is, that the defendant promised to pay, when he received the money. It is like the conditional promise of one who has been, discharged from his debts, that he will pay when he is able.

It is necessary to allege and prove his ability to pay ; so here I think it might have been necessary to allege that the defendant had received the money. But I deem it unnecessary to consider this question, for the reason that the defendant would be liable for the amount of the executions without proof of any promise at all. The law would infer a promise from the facts, as they appear in this case.

It was only necessary for the plaintiff to establish his special title to the property by virtue of his prior levy, and then to show that the defendant had by virtue of a junior execution taken the property and sold it, to entitle him to recover, as upon a promise to pay the amount of his interest in the property. If, therefore, any error occurred upon the trial, it was not to the prejudice of the defendant.. The motion for a new trial should be denied..