Opinion of the Court, per FINCH, J.

(43 id. 10) it was declared to be one definite purpose of the constitutional provision to advise the public, and the locality, and the representatives of the locality and of other parts of the general purpose of the bill, so that those interested might be on their guard as to the whole or as to the details of the bill. The citizens of New York, jealous of interference with their homes, reading the title of this bill, would be deceived, misled, and thrown off their guard. Assuming that the measure proposed related to the sanitary condition of crowded tenementhouses, each citizen would take no heed, and find in the end that his own dwelling-house had been regulated. The legislator who should judge of the bill by its title might deem it proper or harmless, and find too late that the period of objection or resistance was gone. If the law had borne a true and not a false label, warning would have been given. Where the title is such that it gives no hint of the real subject of the enactment; where it furnishes no particle of truthful information; and he who reads it is not bound to know or suspect that the actual enactment does or may exist; and where, as a consequence, the title is misleading and deceptive, it is safe and right to apply the constitutional prohibition. Most of the cases in which the question has arisen have been the precise reverse of the one before us. They have been those in which the title was so broad and general that a multitude of various details could be fairly deemed embraced within it. Of this character have been titles to legalize certain proceedings; in relation to certain contracts or local improvements, and to organize or amend the charters of municipal corporations. (Tifft v. City of Buffalo, 82 N. Y. 211; In re Volkeniny, 52 id. 650; Village of Gloversville v. Howell, 70 id. 290; In re Mayer, 50 id. 505; People, ex rel. City of Rochester, v. Briggs, id. 553; Matter of L. & W. Orphan Home, 92 id. 120; Harris v. People, 59 id. 600.) The title here is not broad, but narrow; not general but specific; not reasonable and fair but deceptive and misleading. Nobody would infer, and nobody was bound to imagine, that under a title relating to tenement-houses alone, there was enacted in the first section a law affecting not tenement

Opinion of the Court, per FINCH, J.

houses as such, but all the dwelling-houses in the city; a law as to which the title not only did not relate, but by its narrow terms, affirmatively and positively excluded it. Nor is section 1 of the act before us saved by the doctrine which we have several times applied, that if a local act contains a subject which is properly expressed in the title it is valid as to that subject, although invalid as to a subject not expressed, for the doctrine applies only where there are two or more subjects, some expressed and some not expressed, while in section 1 there is but one subject, and that not expressed in the title at all. (In re Sackett Street, 74 N. Y. 103; In re Van Antwerp, 56 id. 261; People, ex rel. City of Rochester, v. Briggs, 50 id. 553.) Nor will it do to avoid the difficulty by saying that as the phrase "dwelling" includes within it tenement-house we may hold the section good as to a part of its meaning, and repudiate it as to the balance, for that in this case would be an act of legislation. It would require us to amend the section by striking out the general word "dwelling" and substituting the phrase "tenement-house," and then to hold the section good as amended by the court. The constitutional provision deals with the law itself as it came from the legislature. We cannot change and narrow its terms to save it. In the room of the subject plainly stated we cannot put one narrower and different in order to get it within the title. The section must stand or fall just as it was enacted, and without reference to extrinsic facts developed in cases under it. But all the reasons for holding it not within the title culminate in this, that such title not only failed to express the subject of the section, but by its frame and phrase expressly and affirmatively excluded that subject; for when it professed to relate to tenement-houses it substantially declared that it did not relate to dwelling-houses generally, which was precisely the one subject to which it did relate. Where the title thus deceives and misleads the constitutional provision should apply if it is ever to be enforced.

For this reason we hold section 1 to be unconstitutional, and that being so it follows that the relator is held for an al

Statement of case.

leged crime which did not exist and which he could not commit, and that he should be discharged.

It is not necessary to consider further the effect of this conclusion upon the remaining sections of the act, nor the very grave and serious argument upon the question whether the act as a whole is within the police power of the State, and capable of being sustained under the Constitution. Those questions should be reserved for an occasion, if it shall arise, when their determination is essential and necessary to the conclusion to be reached.

The order appealed from should be reversed, and the relator discharged.

All concur.

Order accordingly.

WILLIAM B. SCOTT et al., Appellants, v. CHARLES MORGAN,

Respondent.

It is not the object of the clerk's minutes to indicate the legal questions
raised upon a trial and determined by the court, and they cannot, there-
fore, be properly referred to to ascertain the grounds of decision.
Where, therefore, a case as settled stated the grounds upon which a motion
to dismiss the complaint was made and granted, held, that this was
controlling and respondent could not refer to the minutes, although in-
corporated in the record, to show that the motion was also based upon
other grounds than those stated in the case.

But held, that respondent had the right, in support of the judgment, to
urge any sufficient ground appearing from the record which he might
have raised in the court below, provided it could not have been obviated
had it been raised on the trial.

The provision of the Code of Civil Procedure (Subd. 3, § 708), declaring that a person who willfully conceals or withholds from the sheriff property which he has attached, but which has passed out of his hands, shall be liable to double damages "at the suit of the party aggrieved," gives to the attachment and execution creditor a right of action when aggrieved. As, however, the remedy thus given exists solely by force of the statute, it must be confined to the cases provided for, and can be resorted to only where injury has been occasioned to the creditor by such willful with

Statement of case.

holding and concealment. Such an injury can only be shown by a return of the process unsatisfied.

The right of action also does not exist save where property has been once taken in execution by the sheriff, has passed out of his hands and he is unable to regain possession, and dispose of it under the authority conferred by the execution.

Where possession is regained, the statute does not give a remedy for an injury to the property while in possession of the wrong-doer.

It must appear also that the concealment and withholding was willful. One who dispossesses the sheriff under a claim of right, and detains the property under a belief that he has a superior title thereto, may not be made liable.

Where, therefore, the complaint in such an action failed to allege that the taking of the property by the defendant was willful, and plaintiff's counsel admitted in his opening on the trial that defendant acted as tax collector and by virtue of a levy under a tax warrant, by which he claimed to have acquired a right superior to that of the sheriff, and it also appeared from the complaint and the opening that after the alleged trespass by defendant, the sheriff regained possession and sold the property under his process; held, that the complaint was properly dismissed.

(Argued December 13, 1883; decided January 29, 1884.)

APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 14, 1880, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.

The complaint in this action alleged the commencement of an action in plaintiff's favor against one Bonner, the issuing of an attachment therein and the levy thereof upon certain specified property of the attachment debtor; the recovery of judgment in said action and the issuing of execution thereon to the sheriff, and the advertisement by him for sale of the property levied on, on February 23, 1878. The complaint then averred that on or about the day advertised for such sale, defendant wrongfully took, from the possession of the sheriff, removed and converted to his own use the said property; that on March 6, 1878, defendant returned the property to the sheriff, but that the same, while in defendant's possession, and by such unlawful removal and retention, was injured and damaged; that

Statement of case.

said property was, thereafter, sold by the sheriff, but in conse quence of such injuries did not bring so large a price as it would have done, and that the avails of the sales were insufficient to satisfy the execution, and the balance thereof remaining, after applying such proceeds, remains unpaid. The further material facts appear in the opinion.

Henry P. Starbuck for appellants. An action lies in the name of an attachment and execution creditor against a wrongdoer for interfering with property held by the sheriff under the attachment and execution. (Code of Civil Procedure, § 708, subd. 3.) By the levy of his attachment the plaintiff acquires a conditional specific lien upon the goods attached as security for his debt. This lien is perfected and made absolute by the subsequent judgment and execution. (Rinchey v. Stryker, 28 N. Y. 45-54; Frost v. Mott, 34 id. 253-255; Thurber v. Blanck, 50 id. 80-83-86; Drake on Attachment, §§ 224, 224a; M. and T. Bank v. Dakin, 51 N. Y. 515-524; Crippen v. Hudson, 13 id. 161-166; Green v. Burke, 23 Wend. 490498; People v. Hopson, 1 Denio, 574-578.) By the wrongful act of the defendant not only has the plaintiff's security or lien for his debt been diminished in value, but the debt itself has been pro tanto satisfied and lost as between the plaintiff and his debtor in the attachment and execution. (Mickles v. Haskin, 11 Wend. 125; Holbrook v. Champlin, 1 Hoff. 149; Green v. Burke, 23 Wend. 490; Ostrander v. Walter, 2 Hill, 329; People v. Hopson, 1 Denio, 574–578; Voorhees v. Gros, 3 How. 262; Waddell v. Elmendorf, 5 Denio, 447; Peck v. Tiffany, 2 N. Y. 451; Radde v. Whitney, 4 E. D. Smith, 378; Ex parte Lawrence, 4 Cow. 417; Jackson v. Bowen, 7 id. 13; Wood v. Torrey, 6 Wend. 562; People v. Onondaga C. P., 19 id. 79; Hayden v. Agent of State Prison, 1 Sandf. Ch. 195; Ladd v. Blunt, 4 Mass. 402; Hoyt v. Hudson, 12 Johns. 207; Shepard v. Rowe, 14 Wend. 260; Miller v. Adsit, 16 id. 335, 349, 350; People v. Reeder, 25 N. Y. 302-304; Howland v. Willetts, 9 id. 170.) It is the plaintiff, and not the sheriff, in whose name actions lie to subject property to the