101 N.Y.S. 1067 | N.Y. App. Div. | 1907
It is alleged in the -complaint that in the year 1900 plaintiff through an agent purchased of the defendant five yearling heifers and paid therefor seventy-seven dollars; that prior to said purchase said heifers had been smuggled into the United States from the Dominion of Canada; that in the year 1903 they were confiscated by the Federal government-; and that by reason of such facts no title thereto was conveyed to the plaintiff, and that the sale thereof by the defendant to the plaintiff was void and without consideration ; - and judgment was demanded for the consequent damages sustained by plaintiff. •
On the trial the unlawful entry into this country from Canada of the property in question without the payment of duty and its subsequent seizure and sale by the Federal government was admitted. At the close of plaintiff’s evidence the County Court dismissed the complaint on the ground that the sale by defendant was not to the plaintiff but to one Pond, his alleged agent.
Plaintiff produced a check made by himself October 15, 1900, payable to the order of the defendant for seventy-seven dollars, the purchase price of the cattle, which was indorsed by the defendant and paid October 26, 1900. On the face of the check was written
It was also error to exclude the conversation between plaintiff and Pond in reference to these cattle just prior to their purchase from the defendant. This conversation was offered for the purpose of proving the agency of Pond in respect to the cattle and should have been received for such purpose.
It is further sought to sustain this judgment on the theory that plaintiff and his agent Pond knew that the cattle had been smuggled. Before they were owned by the defendant they had been owned by one Dougherty who smuggled them from Canada. While so owned by Dougherty, plaintiff and Pond at -different times and independently of each other looked at them with a view to purchasing them. Dougherty testified that he at that time told both of them that the duty had not been paid. Plaintiff denied any knowledge of this latter fact and also testified -that when he bought the cattle he did not know they were the' same cattle which Dougherty once had. A question of fact thus arose as to whether or not plaintiff knew the cattle had been smuggled..
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All concurred ; Parker, P. J., not voting, not being a member of this court at the time this decision was handed down.
judgment and order reversed and new trial granted, with costs to appellant to abide event.