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Partridge v. Rubin

15 Daly (N.Y.) 344 Court N.Y.C.P. Decision date 1889-07-22 English

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p. 344
Josiah Partridge, Appellant, against Fanny Rubin, Respondent.
(Decided July 22nd, 1889.)

Headnote

One who had obtained goods from plaintiff by fraud, sold them to defendant, who had no knowledge of the fraud, but who purchased them on credit, and'parted-with nothing for them. ■ Held, that defendant was not a purchaser for value, and plaintiff could recover the goods from defendant.
Appeal from a judgment of the District Court in the, City of New York for the Second Judicial District.
The action was brought to recover possession of certain personal property which had been obtained from plaintiff through fraud by a certain firm of Epstein & Son, from whom defendant had purchased the property. It appeared on the trial that defendant had, at the time of such purchase, no knowledge of the fraud of Epstein & Son; but it also appeared that defendant had made the purchase on credit, paying nothing, but merely being charged on the books of Epstein & Son with the value of the goods. The justice rendered judgment for defendant. *From the judgment plaintiff appealed to this court.
George Wilcox, for appellant.
Goodhart, Phillips, & Rosenburg, for respondent.

[Present, Van Hoesen and Allen, JJ.] —This judgment is erroneous, and must be reversed. The justice of the district court, adopting the argument of the counsel for the defendant, held that as the defendant was not privy to the fraud practiced by Epstein upon the plaintiff, she must be considered a purchaser in good faith, and as such

p. 345
entitled to hold the property. Whatever her good faith may have been, she was not a purchaser for value, for she parted with nothing when she obtained the goods. It is preposterous to argue that the charge made against her in the books of Epstein is the giving of a thing of value by the defendant. If the demand against her that Epstein held has been assigned to a third party, that would not make her a purchaser for value. The law upon this subject is too well settled to make the citation of authorities necessary or even proper. The case of Devoe v. Brandt ( 53 N. Y. 466 ), and the cases of Spicer v. Waters ( 65 Barb. 227 ), De Mott v. Starkey ( 3 Barb. Ch. 403 ), Jewett v. Palmer ( 7 Johns. Ch. 65 ), Jackson v. Cadwell (1 Cowen 622), Barnard v. Campbell ( 58 N. Y. 73 ), and the very recent case of Eaton v. Davidson ( 46 Ohio St. 355 ), show that even securing the payment of the purchase money is not enough; the purchase money must be actually paid, in order to make the purchaser a purchaser for value (See also 2 Am. & Eng. Encyclopedia of Law, p. 444). The vendor of goods who has been swindled out of them can reclaim them from any one who has not paid for them, either in cash or its equivalent, and in ignorance of the fraud by which the rightful owner was induced to part with them.

The judgment must be reversed and a new trial ordered, with costs to the plaintiff and appellant to abide the event.

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

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