56 N.Y.S. 662 | N.Y. App. Div. | 1899
Lead Opinion
I think that the defendant should have a new trial Assuming that the bona lides of the debt from her husband to the plaintiff was conclusively established, this fact alone would not uphold the transfer of the property, if it was made with intent to hinder, delay, or defraud creditors. Billings v. Russell, 101 N. Y. 226, 4 N. E. 531. There was some.evidence from which the jury might have found that no change of possession accompanied the transfer from the husband to the wife, for they were not obliged to believe the testimony of the plaintiff, she being an interested party. If the jury found there was no change of possession, the transfer was presumptively fraudulent; and then was presented the further question to be determined by the jury,—whether the transfer was made in good faith. I think the learned county judge erred in withdrawing this question from the. jury, and I also think that the defendant’s exception to the action of the court in directing a verdict against him is sufficient to raise the point. However this may be, we have before us an appeal from the order denying defendant’s motion for a new trial, and on that appeal we can grant a new trial, in furtherance of justice, even though there is no exception sufficient to present the question of legal error.
I think a new trial is required for the reason that the damages awarded are excessive. On the attachment, the defendant seized the plaintiff’s books of account, and also assumed to levy on some debts due from third parties to the plaintiff’s husband, and assigned to her, or which had accrued to the plaintiff herself, in the conduct of the business, since the assignment. These book accounts, on their face, amount to over $300. The defendant was able to collect on them $77.35. The action is, in form, for conversion or trover; and, in submitting to the jury the amount of the plaintiff’s damages (which was the only question left to them), the county judge treated the action of the sheriff in making his levy as a conversion of the debts or claims, and left the question of their value to the jury. By the price fixed upon the goods attached, it is plain that the jury must have allowed the plaintiff between $200 and $300 for these book accounts. I do not Understand that there can ordinarily be any conversion of a chose in action, exceptwhere it is represented by a written instrument, or something that is capable of manual seizure or possession; and
The order denying defendant’s motion for a new trial should be reversed, and a new trial granted, on payment by the defendant of the costs and disbursements of the trial. All concur, except GOODRICH, P. J., dissenting.
Dissenting Opinion
I cannot agree with the prevailing opinion of Mr. Justice CUELEhT for reversal, because I am satisfied that we are in a position to do exact justice between the parties, and that further litigation over a small amount should be prevented. The defendant, as sheriff of the county of Orange, in March, 1897, levied on, removed, and sold at auction, certain stock in trade, fixtures, and book debts, by virtue of an attachment against the property of Frederick Vogedes, the husband of the plaintiff. It appeared without contradiction that the plaintiff in 1896 loaned her husband $3,700, to go into business as a manufacturer of cigars, that she afterwards discovered that he had become insolvent, and that in December of that year she consulted a lawyer, and compelled her husband to give her a written bill of sale of the property in question. The plaintiff went into actual possession of the business, changed the sign over the door, paid the rent, and executed a power of attorney appointing her husband her attorney to carry on the business. With these undisputed facts in evidence, the court properly ruled that there was no evidence impeaching the plaintiff’s title to the property, and that the only question for the jury was the value of the property seized and sold by the sheriff. I do not overlook the contention of the defendant that there is an estoppel arising from the fact that when the sheriff made his levy the plaintiff asserted a claim only to a stove and two pictures which the sheriff had enumerated in his inventory, which goods were therefore excluded from the levy. There was sufficient evidence to justify the jury in finding that when the sheriff levied upon the goods the plaintiff notified him that the business and all the property belonged to her, in addition to which it appeared that a few days after the levy, and before the sale, the plaintiff on two occasions gave the sheriff written notice of her title under the bill of sale to all the seized property, and demanded its- return. There could be no estoppel under these circumstances by any failure of the plaintiff to make her claim at the time of the levy, as the sheriff had full no
