Christopher v. Langdon & Granger Brewing Co.

51 N.Y.S. 570 | N.Y. App. Div. | 1898

O’BRIEN, J.

The questions as to whether the property levied upon by the marshal was the individual property of the plaintiff or the joint property of the firm of Mullen & Christopher, and as to whether at the time the judgments were entered the plaintiff was indebted to the brewing company, and, not having been served, has the right collaterally to attack the judgments, would only be important if the plaintiff had proceeded upon the theory of a conspiracy on the part of all the defendants to ruin his business, or if he were seeking a determination of the sufficiency of the evidence as against the defendants other than the brewing company. The theory of conspiracy, however, was abandoned upon the trial, and there, the other defendants having failed to answer, the single question was presented, as it is again upon this appeal, as to whether there was sufficient evidence adduced from which the jury could legally infer that the .brewing company had converted the plaintiff’s property. Whether the property in the store belonged to the plaintiff individually, or was the joint property of the co-partners, would be entirely immaterial as to the liability of the brewing company, unless the evidence would justify the inference that the company had converted the property. In other words, the gravamen of the action, as against the brewing company, was the conversion of the property. The court below dismissed the complaint, on the ground that there was not sufficient evidence to prove that the property levied upon, which concededly at one time had belonged to Mullen & Christopher, had prior to the levies been transferred, and become the individual property of the plaintiff. But, even assuming that the ground of the ruling was incorrect, the dismissal was right, if there was no sufficient basis for the inference that the defendant company was guilty of converting the property.

It appears from the testimony of the bartender, who was present at the time of the levy, that the marshal took the property,, locked up the place, and took away the keys. It is conceded that judgments were obtained and executions issued, and that the subsequent levy and sale of the property were acts of the marshal to whom the executions were delivered. The defendant company was not a party to the actions in which the judgments were obtained or the executions issued, nor was it made to appear that the company in any way exercised dominion over the property after the leA'ies under such executions, or that it purchased at the sale; all that appears being that Mortimer, to whom the company had assigned its claim and who obtained'the judgments, used the trucks-of the -brewing company for the purpose of remoAdng the property, Avhich was taken to the brewery premises and subsequently sold. These circumstances, standing alone, would not justify the inference that the company had converted the property, in the face of evidence that the acts complained of in taking the property and its subsequent sale were the result of a levy made by the marshal under the Mortimer judgments.

Maying concluded, therefore, that there was not sufficient caudence of conversion by the brewing company, we deem it unnecessary to discuss the other questions in the case, which could only arise as between the plaintiff and the other defendants, Mortimer and Scanlon, who are not represented upon this appeal. It seems that they appeared, but did not answer; and, presumably, the plaintiff would be entitled to proceed in the orderly way to obtain judgment as against them., Some confusion arises upon the record, however, growing out of the fact that upon the trial Mortimer and the marshal appeared, the former personally and the latter by attorney, and the judgment dismissing the complaint is in favor of all the defendants. The motion to dismiss the complaint upon the-trial was made only by the brewing company, and was not made on behalf of all the defendants, and could not have been made as to the defendants who were in default for failure to answer. But the only point argued upon this appeal is as to the propriety of the-ruling in favor of the brewing company dismissing the complaint. Whether the evidence was sufficient, as against Mortimer and the marshal, we have not considered it necessary to determine, because it was not urged nor discussed by the appellant, and we have therefore confined our attention to a determination as to whether the judgment so far as it is in favor of the brewing company is right. Having reached the conclusion that it is, we think the judgment should be affirmed, with costs. All concur.