151 N.Y.S. 112 | N.Y. App. Div. | 1915
The complaint alleges that on or about the 16th day of November, 1911, at Keeseville, N. Y., plaintiff delivered to the defendant certain goods, wares and merchandise, and certain store fixtures, of the value of $900; that these chattels were delivered to the defendant upon the express agreement that defendant would sell the same with reasonable promptness and dispatch and from the avails thereof pay the plaintiff the sum of $776, with interest, less a commission of five per cent; that the defendant sold the goods for the sum of $875, the sale being completed on the 4th day of December, 1911; that the defendant paid to the plaintiff the sum of $400.74 in two payments, and has failed and neglected and refused to pay the plaintiff the balance of said $775, although the same has been demanded; that defendant has converted to his own use the sum of $657.18 of the avails of said sale.
It developed from the defendant’s answer, and the matters appearing upon the trial, that prior to January 5, 1911, plaintiff and his brother were copartners in business, which was conducted by them in the village of Keeseville. The partnership was dissolved on that day, the plaintiff selling his interest to the brother, taking a chattel mortgage for $900 on the merchandise in payment of his interest. The merchandise remained in the possession of the mortgagor, who continued in business until the twenty-fifth day of September, disposing of the stock of goods, replacing stock, and carrying on the trade with the knowledge of the mortgagee. On the date
There is very little conflict in the evidence as to the material points, except that the defendant, who is sued personally for conversion of the goods, contends that the goods were marked for the purpose of preserving a record so that tho question might be subsequently disposed of, while the plaintiff claims that the defendant took the goods under the terms of the agreement set forth in the complaint. The learned trial court permitted the case to go to the jury upon the plaintiff’s theory, and upon the jury finding a verdict in favor of the plaintiff, on motion set aside the verdict and dismissed the complaint We are of the opinion that the case was properly disposed of by the court.
There can be no question that the chattel mortgage, under the circumstances, was fraudulent and void as against creditors, as a matter of law. (Zartman v. First Nat. Bank, 189 N. Y. 267, 273, and authorities there cited.) The defendant was in possession in the capacity of a trustee for the protection of the rights of the creditors. He bought nothing and paid nothing, but took title for the performance of trust duties. (Brown v. Guthrie, 110 N. Y. 435, 441.) His relation to the property was known to the plaintiff; the demand upon him was made in his capacity of assignee on the day following the assignment, and
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.