Glickfeld v. Venokur ( 1937 )

Per Curiam.

Plaintiff was the assignee of the vendor under a conditional sale contract whereby certain machinery was sold to Mayfair Dress Company, Incorporated. Plaintiff sued in replevin, setting up her title under the conditional sale contract, and was awarded judgment of possession by the judge of the District Court sitting without a jury.

The defendant, who had bought at foreclosure sale under a subsequent chattel mortgage, appeals and sets up, first, that the plaintiff took nothing by her assignment and, second, that if the plaintiff seeks enforcement of lien her claim rests upon subrogation and is not recoverable herein.

There was testimony in the District Court to the effect that at the time the conditional sale contract was assigned to her by Consolidated Sewing Machine and Supply Company, the vendor thereunder, there was the sum of $250 due thereon from the vendee; that plaintiff paid that amount as the consideration for the assignment of the contract from the vendor to her; that no part of that sum was ever paid to plaintiff by defendant or other person claiming as vendee under the sale contract or as purchaser of any of the rights of the vendee thereunder; that when the chattels were sold at the chattel mortgage sale, the conditions of the sale contained the provision that the sale was subject to the rights and title of Bose Glickfeld as assignee of the Consolidated Sewing Machine and Supply Company under the conditional sale contract; that before the present suit was instituted demand for possession was made upon the defendant. The findings of fact by the trial judge in effect sustained the testimony adduced by the plaintiff in these respects.

It is settled that upon appeal from the District Court that tribunal’s judgment should be sustained if there be any evidence to support it. Breithart v. Lunch, 98 N. J. L. 556; 120 Atl. Rep. 11; Portley v. Hudson and Manhattan Railroad Co., 111 N. J. L. 204; 168 Atl. Rep. 184; affirmed, 113 N. J. L. 13; 172 Atl. Rep. 384. We find adequate evidence to support the finding of the District Court.

Ex parte suggestion is made that motion in diminution of the record is pending; but the case was submitted in accordance with the rules and no motion or arrangement for motion has been made.

The judgment below is affirmed, with costs.