77 N.Y.S. 699 | N.Y. App. Div. | 1902
One Sadie Tischler brought an action in the Municipal Court of the city of New York against Abraham Fishman to recover the purchase price of certain - furniture alleged to have, been sold .by her
Within the three months specified, this plaintiff brought an action upon the bond against Goldman, to recover the amount specified therein. She had a verdict for the amount claimed, and from the judgment thereafter entered Goldman and the sureties upon the bond have appealed.
The ground upon which the writ of attachment was issued was that Fishman had given Goldman possession of the property levied on, with the intent and for the purpose of cheating and defrauding the plaintiff .and other creditors. The appellants attack the judgment principally upon two grounds : (1) That the plaintiff failed to establish the value of the jmoperty levied on, and (2) that the court erred in instructing the jury that the burden of proof was upon the defendants to establish the ownership of the property and in refusing to instruct, at defendants’ request, that the burden was upon the plaintiff to show that the sale was fraudulent.
First. The complaint charged that by the bond given the defendants obligated themselves, and thereby promised and agreed to pay “ the value of the property levied upon at that time, to wit, $410.75.” This allegation was not denied in the answer. It was, therefore, admitted, and there was no necessity for the plaintiff to offer any proof upon that subject.
Second. The court did not err in charging as he did, nor in
The judgment and order appéaled from are right and must be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.