Citation Numbers: 24 N.Y.S. 1065, 78 N.Y. Sup. Ct. 511, 54 N.Y. St. Rep. 907
Judges: Harden
Filed Date: 9/15/1893
Status: Precedential
Modified Date: 1/13/2023
1. Plaintiff in Ms complaint alleges that on the 26th of March, 1890, he “was the owner and in possession of a stock of drugs, chemicals, * * * all contained in the store tNo. 2 Tracy Block,’ so called, situate in the village of Havana.” He also alleges in his complaint that on the 11th of March, 1890, he purchased the stock, the property aforesaid, of one John H. Hanson, in payment of an indebtedness of $1,494.95; and that, by the terms of the purchase, he was to proceed to sell the property, and retain therefrom the said indebtedness of $1,494.95, and, if there was any further sum realized above that indebtedness and any expenses, the surplus was to be deposited to the credit ■of Hanson in the bank in Havana; and that, in pursuance of the purchase, the plaintiff surrendered to Hanson, as. a consideration of said sale, several promissory notes of Hanson’s held by the plaintiff, which, with the interest added, amounted to $1,494.95, that being the sum that Hanson justly owed the plaintiff. The plaintiff alleges that after the purchase he took immediate possession of said store and stock of goods; and the plaintiff alleges in his complaint that the value of the goods so taken was $1,780.84. He further alleges that on the 26th of March, 1890, the defendant “unlawfully and wrongfully entered said store where said stock •of goods then was, and unlawfully and wrongfully dispossessed the plaintiff, and took possession of said stock of goods aforesaid, and converted them to his own use, and wholly deprived this plaintiff of the same.” In the answer of the defendant, several judgments ■ against John H. Hanson are set out, and an averment that executions were issued thereon and placed in the hands of the sheriff, the defendant, and that in virtue thereof he made a levy upon the property, and that in virtue of the levy and executions the defendant, the sheriff, sold the property referred to in the complaint. Upon the trial the plaintiff gave evidence that he was in possession ■of the property at the time of the levy, and gave evidence tending to support his title to the property, and that theretofore he had received from Hanson a chattel mortgage collateral to the notes and indebtedness of Hanson to him, and that, pursuant to the purchase of the goods in satisfaction of the mortgage and indebtedness so held by the plaintiff against Hanson, he surrendered the notes and claims which he held against Hanson on the 10th of March or the next day, in pursuance of the purchase of the property made by Mm of Hanson. The plaintiff also gave evidence that he had taken from Hanson a bill of sale transferring the property, in pursuance of the arrangement already stated. There was some dispute as to the circumstances attending the bill of sale and as to ' its validity, and a conflict in the evidence relating thereto. There was the positive testimony of the plaintiff, to some extent corroborated as to the essential facts, to sustain the issue in behalf of the plaintiff. Hanson was called as a witness, and in many particulars disputed the testimony given by the plaintiff; and some other testimony was given tending to support the position taken by Han-son in respect to the bill of sale. It appeared, however, upon all
2. It is claimed that the court erroneously refused to allow the witness Hanson to answer the question, “You handled this stock in a proper manner, did you?” also the question, “You managed that business in the way most likely to produce the best results for a profit?” and erred in excluding an offer “to show by this witness the amount of money that was actually put in the goods in the business.” The witness had already been permitted to state that “the goods I bought were in value altogether about $1,800;” and it was not a question for an opinion by the witness whether he had managed the business well or otherwise, and the rulings referred to and the exceptions thereto do not require an interference with the verdict.
3. Defendant sought to justify the taking of the property under the judgments and executions .issued thereon against Hanson. That was an affirmative defense, and we are of the opinion that the court committed no error in saying that the burden of establishing that defense rested upon the defendant.
4. In the body of the charge the court had referred to witnesses who had been upon the stand and gave evidence tending to corroborate the testimony given by Hanson on some branches of the
5. The defendant’s counsel requested the court to charge “that a chattel mortgage upon the stock of goods in a business place, where the goods are being sold from time to time by the mortgagor, is void as against creditors.” In response thereto, the court observed:
“It is possible that there are some circumstances under which a chattel mortgage may be rendered void if it gives to the mortgagee the right to sell, or, if mortgagor sells, it may become void as to creditors. It depends upon the circumstances.”
An exception was taken thereto. We think the court committed no error which the exception presents. Cook v. Bennett, 60 Hun, 8, 14 N. Y. Supp. 683, and cases there referred to in the opinion. We have looked at the other exceptions to which our attention has been called, and are of the opinion that none of them require us to disturb the verdict. Judgment and order affirmed, with costs.