28 N.Y.S. 890 | N.Y. Sup. Ct. | 1894
This is an appeal from a judgment against the defendant, awarding to the plaintiff possession'of certain tobacco, and, in case the same is riot delivered to the plaintiff, that then the plaintiff recover of the defendant the sum of $551.50, the value of said property, and also the sum of $44.20, damages for the detention thereof. It appears that the plaintiff sold the tobacco in question to one Metzner, about the 1st of July, 1891, on a credit of four months. About September 23, 1891, certain creditors of Metzner’s, claiming that he was removing and disposing of his property with the intent to defraud his creditors, obtained an attachment against Metzner's property. Under such attachment the defendant, as sheriff, levied upon the property of said Metzner, seizing, as a part of the same, the tobacco in question in this action. The plaintiff brought his action in replevin against the sheriff to obtain possession of the tobacco, alleging that the same was obtained from him by false and fraudulent representations and statements made by Metzner as to his financial condition, and' that the said tobacco was purchased by Metzner with the intent not to pay for the same, and with the intent to defraud and cheat the defendant out of his property, and that, upon the discovery of such fraud, he (the defendant) disaffirmed the sale, and made a demand upon the sheriff for said tobacco in the sheriff’s possession. The property was replevied from the sheriff by the coroner. The plaintiff in the attachment proceedings executed and delivered to the coroner a proper undertaking for that purpose, which was approved by the coroner, and the tobacco returned to the possession of the defendant. Upon the trial, evidence was submitted by the plaintiff of the false and fraudulent representations made by Metzner at the time of the sale of the tobacco, and by which the plaintiff was induced to make such sale; and the jury, by their verdict, have found that issue in favor
No question is raised upon this appeal but that the plaintiff, within a reasonable time; after the discovery of the fraud upon him, commenced proceedings to recover his property; neither is there any question raised as to a proper demand having been made by him for the possession thereof. The appellant does, however, raise the
MAYHAM, P. J., concurs, PUTNAM, J., not acting.