2 E.D. Smith 440 | New York Court of Common Pleas | 1854
Lead Opinion
The portion of Burnap’s testimony, to which the defendant excepted, was admissible. It was a part of the res gestee. It was proper to repel any presumption of fraud, and show that the agreement or understanding in respect to the manner of the sale was entered into in good faith.
The testimony received for the purpose of showing the mode of selling stereotype plates at the trade sale was unobjectionable. The impression taken from the plates, might be more satisfactory in guiding the judgment of buyers, than the inspection of the plates themselves. And the usual and customary mode of disposing of a peculiar article of this description, among the trade, might serve to explain why no inspection of the plates took place among the persons present. It appeared, moreover, from other testimony in the case, that the value of stereotype plates depends upon the saleable character of the books printed from them; that the books, in this instance, were well known; and that the plates were only valuable as type metal. All these circumstances would go to show that an inspection of the plates was not essential to aid the buyers; and that though an opportunity was afforded them to inspect them, they did not think it necessary to do "so. There was more evidence upon this than upon either of the former trials, to show that the plates could have been seen by those attending the sale. A witness said, that according to his recollection, an announcement was made at the sale, that there were stereotype plates in the vault, and that they could be examined. There was proof that the vault was open, and that the greater part of the plates were up on the day of sale. The mode of selling such plates at the trade sale might, therefore, serve to explain why the
The testimony offered respecting the judgments was inadmissible. Even if the judgments of Burnap & Babcock and Ballou were entered up without process being served upon either defendant, and were thus, according to the ruling in Stoutenburgh v. Vandenburgh, (7 How. P. R. 230,) judgments only as against Reed, who confessed them, nevertheless the sheriff had authority to sell under the other judgments, in which suits were commenced and process served; and that was sufficient to pass a title to the plaintiff.
The intention of the witnesses, Benedict and Adee, was, as testimony, altogether too yague and uncertain to be received in evidence. What was called the lump lot was sold in that way, after the sheriff had allowed the parties interested half an hour to confer together. The sheriff says that he sold the residue of the articles in one lot, at the request of the judgment creditors, "and other creditors who were present, and with the assent of both of the judgment debtors ; and the plaintiff’s witness swears that it was so sold in the expectation that it would bring a higher price—the property previously sold in small lots having been sacrificed. The intention of these witnesses to buy separate articles was wholly immaterial. It would not go to prove that the arrangement as to the mode of sale entered into by all the parties interested, who were present, was not in good faith, nor that the property would not bring more if sold in that manner than if sold in smaller lots.
The motion for a nonsuit was properly denied. This court, when the case was last before them, at the general term, decided that the questions, whether there was an intent to defraud creditors, whether the property was within view of those attending the sale, whether it was offered in such lots and parcels as were calculated to bring the highest price, and whether the plaintiff was in possession of the press at the time the suit was commenced, were, under the evidence, questions for the jury. _ The evidence upon the present trial is somewhat fuller than before, and removes all doubt, if any
The charge was in accordance with the decision of the court at general term, and was full and explicit. The four first requests were substantially charged. The instructions asked in the remaining two, the defendant was not entitled to.
There was no objection to the judge telling the jury that it was a question of great doubt, in his mind, whether the right of possession of the press was in Reed & Cunningham, under their lease, at the time of the levy—the lease to them •not having been executed until after the levy and sale of the press under Ketchum’s execution. An expression of opinion by the judge, founded upon the testimony, furnishes no ground for an exception. He. submitted the question to the jury as a question of fact, and told them, that as they decided, they would find for the plaintiff or for the defendant. To this, also, an exception was taken. The judge certainly could not, upon the evidence before him, as matter of law, instruct the jury that they must find that Reed & Cunningham, and not the plaintiff, were in possession. The weight of the evidence was in fact the other way. Cunningham swears, that the press was not included in the property leased, nor in the schedule annexed to the lease. He says he had possession of the premises from December 7th, 1846, but no agreement from - the plaintiff. That he had no arrangement with the plaintiff in January, 1847, the press having been sold on the 14th of that month, but that the arrangement was made with the plaintiff after the press was taken away. He says he had possession of the press and the use of it when it was taken by the sheriff; but this did not show that he or Cunningham & Reed were in possession by any agreement or understanding with the plaintiff for a definite time, which had not expired when the press was taken by the sheriff. The farthest
Ingraham, First J., concurred.
Dissenting Opinion
I am not satisfied, that the case exhibited on the last trial is more favorable to the plaintiff than upon the former. But as my brethren concur, it is unnecessary for me to pursue the subject.
Order denying a new trial affirmed.
