Opinion of the Court, by MONELL, Ch. J.

marily, the defense to the motion has been held insufficient in law, and the fact presented in this case has not arisen. There being no question in dispute, no constitutional right or otherwise of the attorney was violated in entertaining and determining the motion at special term.

But in this case, the constitutional right to have the fact which is alleged in answer to the plaintiff's application determined by a jury, is sufficiently and properly raised.

But, for the reasons stated, it is not well taken.

There is no allegation or charge anywhere in the papers, which impugns the integrity, professional conduct, or skill of the plaintiff's attorney and counsel. His claim to compensation is one recognized by law, and he was justified in withholding the money collected on the judgment, until his claim to compensation was allowed by his client, or disallowed by the courts. And the only question that has entered into the controversy, has been, as to the mode of trying the question.

The order appealed from must be affirmed, with costs.

FREEDMAN, J., concurred.

Statement of the Case.

GEORGE M. CHAPMAN, PLAINTIFF AND RESPONDENT, 7. JAMES O'BRIEN, SHERIFF, ALEXANDER DOUGLAS, JACOB SEEBACHER, JOHN GRAHAM, AND CHARLES A. JENKINS, DEFENDANTS AND APPELLANTS.

I. EXECUTION AGAINST PROPERTY.

1. BOND OF

INDEMNITY-SPECIAL CONDITION-WHAT SUFFICIENT PROOF TO MAKE A PRIMA FACIE CASE AGAINST SURETIES UNDER.

1. Special clause.

a. The bond recited the recovery of a certain judgment, and the issue of an execution thereon to the sheriff against the property of the judgment debtor, and then further recited, "Whereas CERTAIN personal property that appears to belong to the said judgment debtor against whom said execution has been issued, as aforesaid, is claimed by some other party or parties," and was CONDITIONED to save the sheriff, and all persons aiding him from all harm, &c., that might arise, &c., against him or them, "as well for the levying, attaching, and making sale under and by a virtue of such execution of ALL OR ANY personal property which he or they shall or may judge to belong to said judgment debtor, as in entering any shop, store, building, or other premises for the taking of an such personal property."

2. Evidence, what establishes a prima facie case against the sureties under such a clause.

a. Where the answer of the sureties, after a general denial, in a separate affirmative defense claims that the property for the taking of which the action is brought was the same property which was levied on under an execution issued in a certain described action, the description of which is the same as the description contained in the bond of the action therein referred to, and further claims that such property belonged to the judgment debtor in the judgment described in the answer; and the efforts of all the defendants (being the sureties, the sheriff, and the deputy, who made the levy) are directed at the trial to elicit and establish the facts that the property in question was the

Statement of the Case.

in the possession of, and used by the judgment debtor; that it apparently belonged to him; that he had really a levible interest therein, and that it was rightfully levied on;

a prima facie case is presented,

that the sheriff had not only levied on the property claimed by the plaintiff, but that he had judged that it belonged to the judgment debtor, and,

1. A motion by the sureties to dismiss the complaint was properly denied.

a. If at the conclusion of the whole testimony, a doubt remained whether the levy was within the authority conferred by the bond, the jury should be directed to determine the fact.

II. NEWLY DISCOVERED EVIDENCE.

1. MOTION FOR NEW TRIAL ON GROUND OF DENIED, ALTHOUGH THE

MOVING PAPERS SHOW A PRIMA CASE.

a. When the case made by them is to a great extent neutralized
by opposing affidavits, and the credibility of the affiants
for the moving party is materially impaired by retractions,
explanations, and qualifications, made by some of them in
subsequent affidavits, in which they also stated the manner
in, and inducements under, which these prior affidavits had
been procured, and other suspicious circumstances appeared,
such as that several of the affiants could not be found at
the places of residence given by them; that one denied that
he had signed or sworn to any affidavit; that another had
admitted that the affidavit made by him was untrue, and had
been made for a money consideration; that the moving party
had paid out considerable money, and had agreed with one
of the affiants to pay him a large sum for the discovery and
procurance of testimony sufficient to obtain a new trial,
the motion should be denied.

Before MONELL, Ch. J., and FREEDMAN, J.

Decided April 5th, 1875.

The plaintiff complained as follows: "That heretofore and at the several times hereinafter mentioned, he was in possession of the premises, in the city of New York, being the third and fourth lofts of factory, on the north side of West Thirty-third street, between

Statement of the Case.

Tenth and Eleventh avenues; that on or about the 5th day of February, 1868, the defendants broke and entered into and upon the said premises, and committed divers injuries to said premises and the personal property therein, and took and converted to their own use divers articles, consisting of machinery, furniture, and fixtures, then and there being the property of the plaintiff, of the value of about thirty thousand dollars; all of which is to the damage of the plaintiff the sum of thirty thousand dollars; for which said sum, with interest thereon from the 5th day of February, 1868, the plaintiff demands judgment."

The defendants' answers contained, in effect, a general denial and a justification of the taking of the property by the defendant, James O'Brien, as sheriff, and the defendant, Jacob Seebacher, as deputy sheriff, under executions against the property of one William R. Ellis, a judgment debtor, in favor of the defendant, Alexander Douglas.

The defendants O'Brien and Seebacher further alleged:

(1) That under and by virtue of said executions they, as sheriff and deputy-sheriff respectively, forthwith, upon the receipt of the same made a formal levy upon certain furniture, machinery, and fixtures of the character and description of those mentioned and described in the complaint, and took the same into their custody, which they believe to be the same personal property referred to in the complaint.

(2) That the said levying upon and taking possession of said personal property, was merely formal, and said property was not removed, nor in any way disturbed, and that after having nominal possession of the same for two days only, they having made a levy upon other property of said William R. Ellis, of sufficient amount to satisfy the executions and precept aforesaid, before the commencement of this action returned said.

Appellants' points.

furniture, machinery and fixtures to the possession of the parties from whom the same were taken, in like good order and condition, in every respect, in which the same were received; and that the said levy, and taking, and detention, as aforesaid, constitute the supposed wrongful taking and conversion in the complaint alleged.

At the trial the plaintiff had a verdict for seven thousand one hundred dollars.

Defendants' counsel moved for a new trial upon the judge's minutes, which motion was denied, and an order was entered to that effect.

Subsequently the defendants moved, on a case and exceptions and on affidavits, at a special term of the court, for a new trial on the ground of newly discovered evidence. This motion was also denied.

The defendants appealed from the judgment, and the two orders denying the motions for a new trial.

Brown, Hall, and Vanderpoel, attorneys, for appellants O'Brien and Seebacher.

R. C. Elliot, attorney, and of counsel for appellants Douglas, Graham, and Jenkins, urged:-I. The simple giving of a bond of indemnity to the sheriff, it is submitted, is not enough to justify a recovery against the judgment creditor in the execution and the sureties, unsupported by any evidence showing the giving of the bond for the purpose of seizing the property in question, or any direction to the sheriff to levy upon the property. Not a particle of evidence had been given connecting these defendants with the alleged levy at the time said motion was made, neither was any presented afterwards. The sheriff having been directed to levy upon the property of Ellis in the second floor, the sewing machines, &c., which this plaintiff laimed, and the bond having been called for and