17 N.Y.S. 809 | N.Y. Sup. Ct. | 1892
Lead Opinion
The action was brought to replevin certain diamond stones, which the complaint alleged had been consigned on memorandum, in December, by the plaintiff to the defendant. The complaint alleges a demand, and a failure to return, and “that said defendant Payne wrongfully, unlawfully, and fraudulently detained said property from the plaintiff; that the de
The defendant (appellant) Payne, for the purpose of reversing the judgment, asserts that there was no evidence at the close of plaintiff’s case to sustain the allegations of the complaint, and that the motion then made to dismiss the complaint should have been granted, and that no evidence was afterwards furnished to warrant the court in submitting the case to the jury. A mere glance at the testimony will demonstrate that this contention is not supported. The evidence offered by plaintiff tended to show that, on December 12, 1887, Payne called upon Hedges, and obtained the goods on memorandum. For these he was to pay “spot cash,” and obtain a bill or return the goods, as appears from the memorandum itself, which is offered in evidence, from which the following is an extract: “Consigned on memorandum to Messrs. Payne, Steck & Company by William S. Hedges & Company. The under-mentioned goods are for your examination, to enable you to select such as you desire to purchase. None of them are sold, nor does the title thereto pass until after we shall be apprised of your selection, and have rendered a bill of sale therefor. ”
The diamonds were delivered on December 13th and 23d: Between the latter date and the 28th plaintiff sent several times, and, though not seeing the defendant Payne, demanded of his clerk the return of the goods. On the 28th of December Payne confessed judgment,—to his wife for $14,504.05; to his wife’s uncle for $2,017.31; to his wife’s mother for $7,039.07; to his wife’s cousin for $1,853.31; and to other persons judgments amounting in all to about $4,000. Later, on the same date, he made a general assignment for the benefit of his creditors, which was filed on the morning of the 29th of December. From the schedules it appears that the firm assets were about $30,000, and the liabilities $137,000. It was also shown that the same attorney who drew up the assignment, and has acted as Payne’s counsel since, also acted in behalf of the judgment creditors. It was also made to appear that, about the same time, the defendant obtained from other dealers in the trade goods on memorandum, which he never returned or paid for. On December 26th, Payne was seen in his office by the janitor of the building, who testified that he was alone, that the safe was opened, and some jewelry spread upon the table, and that, subsequently, he left the building, carrying a satchel with him. After the assignment on the 28th, and after the sheriff had made a levy under the executions on the confessed judgments, the plaintiff endeavored to find the defendant Payne, and finally located him in Brick Church, New Jersey. He gave no satisfactory explanation of the disposition made of the diamonds, and an examination made of the firm’s sales-book and memorandum book, afterwards, by one of the plaintiff’s clerks, failed to show any entry during the month of December of any goods which resembled the goods consigned on'memorandum by plaintiff, except one entry, which, judging from the price, might or might not have been of the pairs of diamonds consigned on December 13th.
Upon such testimony, we fail to see what the trial judge could have done otherwise than submit the questions involved to the jury, which were substantially two. On the first, as to whether the plaintiff parted with title, there was no dispute, it being evidenced by the writing, an extract of which has been given, and which showed the terms and conditions upon which the diamonds were received, and the agreement of the parties themselves that the title thereto should remain in the plaintiff. The only question that remained in the case, practically, was as to whether or not there had been a fraudulent disposition of the property, so as to deprive the plaintiff of the benefit thereof,
Upon a consideration of the above facts, the jury found that the defendant was guilty of fraud, and we see no reason for disturbing their verdict. Where, as here, the title to the property was shown to be in the plaintiff, all that was necessary to support a recovery was for the plaintiff to show that the goods had been removed, concealed, or disposed of, so that they cannot be found or taken by the sheriff, and with the intent that they should not be so found or taken, or to deprive the plaintiff of the benefit thereof. Code Civil Proc. § 549, subd. 2. It was not error to admit in evidence the assignments •and the judgments confessed, as these were material to be considered in connection with all the other facts for the purpose of showing the intent. The weight to be given them, so that no injury might result to appellant, was clearly marked by the charge of the learned judge: “That the mere fact that the defendant became embarrassed in business, and made an assignment, ■and confessed judgment, does not establish any wrongful or fraudulent intent. ”
The only other exception which has been pressed upon this appeal is that taken to the admission of evidence as to the contents of the book. That all primary sources were exhausted before secondary evidence was allowed is •evident by the record. The only suggestion made of any omission was the alleged failure of the plaintiff to show a notice served upon the defendant to produce the books. The respondent insists that such a notice was given, but its failure to appear in the case compels us to regard the question as though -no notice had been given. Under these circumstances, however, where there is a reasonable probability that such notice was given because, upon the argument of the appeal, the original notice to produce was exhibited, it remains for the appellant, in order to gain any advantage from an objection based on such slender foundation as the omission, to include “the notice to produce” in the printed case on appeal to bring himself clearly within the rule entitling him to the benefit of an exception on this ground. An examination of the case will show that, when the secondary evidence was about to be given, the objection was interposed in the following language: “Defendant’s counsel renews his objection to allowing the witness to answer what those books show. Objection overruled, and defendant excepts. ” It nowhere in the ease, prior to the objection thus taken, appears that any such objection was made, nor was any evidence given of entries in regard to the books. It will be noticed, therefore, that the grounds of objection when made were not stated; and a general objection of this kind is not available, particularly where, as here, it is not shown that any injury resulted by the exercise of the discre
Concurrence Opinion
I concur, but I do not concur in what is said as to production of notice to produce upon the argument the notice to produce. Sometimes appellate courts will receive record evidence, (Dunham v. Townshend, 118 N. Y. 286, 23 N. E. Rep. 367, and cases cited,) but no other kind of proof. The notice to produce was not a record, and did not necessarily prove itself.
Lawrence, J., concurs in the result.