Wright v. Maseras, 56 Barb. 521

Wright v. Maseras

56 Barb. 521 | N.Y. Sup. Ct. | 1869

By the Court,

Potter, J.

The undisputed facts in this case are, that the plaintiff in this case, being a merchant tailor at Saratoga Springs, had sold and delivered to the defendant a bill of clothing, amounting to $68. That a few days afterwards the defendant came to him, and offered to him two $50 bills, purporting to be United States money, in payment of said clothing*. That the plaintiff thereupon gave the defendant $32 in return, in exchange for said $50 bills. And one of said $50 bills being counterfeit, was returned by the plaintiff to the defendant, and the defendant refused to make good the error. The defendant being a Cuban Spaniard, and unable to speak English, the conversation, on the return of the bill by the plaintiff, was conducted by the defendant’s banker, one Cabalos, who was also a Cuban, and who could speak English, in the presence of the defendant. During this interview, at the return of the counterfeit billj when the plaintiff talked to Cabalos, the defendant and Cabalos conversed together in a language that the plaintiff did not understand, but Cabalos told the plaintiff that the defendant did not pay him the bill; and when the plaintiff asked him to take the bill back, Cabalos made the reply with a gesture, putting up his hand and turning his head on one side. If there was no legal objections to prevent it, the justice was authorized from the facts, and the reasonable conclusions to be drawn from the circumstances, to give the judgment he did, for wrongfully obtaining and withholding $32 from the plaintiff^ according to the first count in the complaint.

*530We proceed, then, to examine the legal objections to the recovery. The first objection, that the affidavit on which the warrant was issued was insufficient, I do not think is well taken. The nineteenth section of the justices’ act does not specify what particulars it .shall state, but only that it shall state the facts and circumstances within the knowledge of the plaintiff, or person applying for the warrant, as the grounds of his application, whereby the justice may better judge of the necessity and propriety of issuing the warrant. The affidavit did state such grounds, and satisfied the justice; and I think any reasonable mind would be satisfied, when it is stated that the defendant was a non-resident, and had obtained goods under false pretenses. The statute does not require the affidavit to state that the plaintiff is a resident of the county, as it is claimed.

The important, and as I think the main question in the case, arises upon the motion of the defendant’s counsel before the justice, to strike out the plaintiff’s testimony relating to the conversations in the presence of the defendant, with Cuezala, a Cuban friend of the defendant, who could speak English, and with Cabalos, another Cuban friend, and the banker of the defendant, who could also speak English. The plaintiff could neither speak or understand the Spanish language. The interview was at the time the plaintiff offered to return the counterfeit bill. The testimony is, that the plaintiff first approached Cuezala, the defendant sitting by his side; he showed Cuezala the $50 counterfeit bill, and told him that the defendant had just paid him that bill, and that it was counterfeit; Cuezala referred the plaintiff to Cabalos, who was also sitting beside the defendant, and gave the plaintiff to understand that Cabalos was the defendant’s banker. The plaintiff then applied to Cabalos, showed him the bill, and repeated the statement that had been made to .Cuezala, Cabalos replied that the defendant did not let him have *531the bill. Daring the time, Cabalos had a conversation with the defendant, in a language the plaintiff could not understand. Cabalos then gave as a reason why the defendant did not pass the bill in question to the plaintiff) that all the money the defendant had came through him, Cabalos. The plaintiff then repeated that the defendant did pay the bill to him, and asked him (it is uncertain whether “him” means the defendant or Cabalos) to take it back. Cabalos replied with a gesture. He put up bis hand and turned his head on one side. Immediately after the conversation of Cabalos with the defendant, the defendant took out a package of money, and showed it to Cabalos. This testimony, of the conversations of the plaintiff with Guezala and Cabalos, was moved to be stricken out, on the ground that they are hearsay; that they are not conversations of that character that the defendant can be bound by them; or held responsible for them; which motion the justice denied. Had this motion been confined to an objection to the conversation with Guezala only, I think the justice should have stricken it out. Ho connection is shown between Guezala and the defendant. He (Guezala) did not assume to be acting for the defendant, or claim a right to speak for him; nor does it appear that he communicated to the defendant what the plaintiff said to him; but, on the contrary, referred him to Cabalos, the banker and friend of the defendant. The objection, however, is joint, and includes both Guezala and Cabalos. If the objection was not good as to both, it was properly denied. Besides, as nothing was said to Guezala that was not repeated to Cabalos, this conversation with Guezala was harmless, and it could have no influence upon the mind of the justice. The question then is, should the conversation with Cabalos have been stricken out as testimony ? This should be determined, not as a question of law, but as a question of fact. If the defendant, through his interpreter, friend and banker, Cabalos, understood, or *532was made, to understand, the plaintiff’s statement and claim that he had passed to him a counterfeit bill, and that he demanded its redemption, then the conversation is to be used to the same effect as if the plaintiff had addressed him in Spanish, or any other language that he did understand. It is only important to know that he understood it. It would seem that the justice believed he understood it; otherwise he could not, or rather ought not to have rendered a judgment for the plaintiff. If he did understand it, the justice was right. Is there, then, evidence sufficient to sustain this conclusion of the justice? If there is, then we must apply the rule adopted in Burnham v. Butler, (31 N. Y. Rep. 486,) which is “ to give the judgment of the justice every reasonable construction to sustain it, if from the evidence it was possible for him to have given such a judgment as he did give.” I think it was possible, nay, reasonable, for the justice to draw the conclusion of fact, from the conduct of the defendant, that he understood the conversation of the plaintiff with Gabalos, and the object of the plaintiff’s visit. The plaintiff had the counterfeit bill in his hand; the defendant knew he had passed to him a $50 bill. Cabalos spoke to the defendant in language that he understood, and immediately the defendant took out his package of money and showed it to Cabalos; Cabalos was his banker, and had furnished him with his money. The circumstances are strong enough to establish the conclusion that the defendant knew and understood this conversation. • The inference, at all events, was strong enough to put him on the defense. He could have been sworn, and through an interpreter could have acquitted himself of all wrong intent, if his transaction was honest. He was, in the condition that the omission to defend himself added to the force of the presumption against him. (Bush v. Lathrop, 22 N. Y. Rep. 550.) He did not attempt to show that he did not understand the conversation.

*533[Schenectady General Term, April 6, 1869.

There is still another point raised by the defendant, as a ground of error in the judgment before the justice, to wit, that another action was pending before another justice, for the same cause of action; and that this was proved before the justice. To this it may be answered : 1st. That the pendency of another action should have been set up in the answer; which was not done. There was no issue of that kind in the case to be tried. 2d. The proof of another action, though admitted by the justice, against objection, was not the best proof required for that purpose; and, for the purpose of proving the pendency of another action, its admission was error. 3d. ,If the evidence had been admissible, and an issue of that kind had been joined or set up, the proof failed to establish the pendency of an action at that time. It would only have proved the commencement of an action—not its present pendency. For the purpose of impairing the weight of the plaintiff’s evidence, perhaps the proof of the preliminary proceedings upon the attachment, with application and affidavit of the plaintiff, was admissible.

Upon the whole case, I have come to the conclusion that the judgment of the justice should be sustained, and that of the county court reversed.

Rosekrans, Potter and Bockes Justices.]