Hornberger v. Feder, 30 Misc. 121

Hornberger v. Feder

30 Misc. 121 | N.Y. App. Term. | 1899

Leventritt, J.

The question presented for review is whether there was a rescission of a contract of sale after delivery of the chattels so as to support an action for their recovery as against an attaching creditor.

On the 29th day of May, 1899, the plaintiffs sold and delivered *122to the defendant, Annie Eeder, thirty-six barrels of flour. On the 12th day of June, 1899, the defendant, Abramson, as a marshal of the city of Hew York, levied on the flour under a warrant of attachment against the property of the defendant Eeder. Three days later the plaintiffs replevied the flour from the defendants and have since retained the possession thereof.

On the trial the plaintiffs sought to justify the writ by an alleged rescission of the sale. The plaintiff Hornberger, testified on his direct examination that on the day preceding the issuance of the warrant, .the defendant Eeder sent him, “ word she didn’t want the goods,” ■ and ■ oh his cross-examination' he added: “ She notified "me through her husband, who came around and told us to take the goods away.” He further testified that on the morning of the levy he went to the premises of the defendant Eeder but found the marshal already in possession of the flour. Hornberger’s father, called as a witness, claimed to have preceded the marshal by half an hour, and to have notified the latter that the flour belonged to his son.

This summarizes all the testimony in support of rescission. Inasmuch as the rescission is predicted solely on the direction of the defendant’s husband to the plaintiffs, it would, perhaps, be sufficient to point out the complete absence of proof indicating authority in him to give such direction. This omission, emphasized by the defendant Feder’s assertion that he had no authority, would in itself require a reversal of the judgment.

There is, however, a furtherf ground not dependent on his authority. We are of the opinion that as a matter of law there was no rescission of the sale. The title of the defendant Eeder had been perfected; there had been a perfect delivery; the contract remained in no respect executory and no pretense of fraud was made. The plaintiffs, under those circumstances, could not become revested with the title to the flour by a rescission, but only by a re-sale. The fact that for a period of two weeks the defendant Eeder was in undisputed possession, and that her right of ownership was both exercised and recognized, indicates clearly that the property was hers and so continued unless by a new contract, she re-sold to the plaintiffs.

. There is no claim:that there was such a re-sale, and if made could not prevail, because'there was no compliance with the provisions of the Statute of 'Frauds.

*123This case is analogous to that of Blanchard v. Trim, 38 N. Y. 225, which is an authority for this reversal.

Freed mam, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.