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Lewis v. Flack

16 Daly (N.Y.) 240 Court N.Y.C.P. Decision date 1890-06-02 English

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p. 240
Charles Lewis et al., Appellants, against James A. Flack, Sheriff of the City and County of New York, Respondent.
(Decided June 2d, 1890.)

Headnote

Where a sale of goods has been procured by false and fraudulent representations of the purchaser, the seller may recover them, on proof of the fraud, from a sheriff who has levied on them as the property of the purchaser.
Appeal from a judgment of the District Court in the City of New York for the Eleventh Judicial District.
The facts are stated in the opinion.
Nathan Lewis, for appellants.
. David Tim, for respondent.

[Present, Larremore, Ch. J., and Allen and. Bookstaveb, JJ.)—This action was brought to recover the possession of certain property fraudulently obtained from plaintiffs by the vendee and levied on by the defendant as sheriff.

The sheriff was not a purchaser for value, and where a sale of goods has been induced by false and fraudulent representations on the part of the vendee, the vendor may reclaim and retake them from the'possession of any one but a purchaser in good faith for value; and evidence of the false and fraudulent representations inducing the sale js admissible in an action brought against the sheriff to the same extent that it would be against the original vendee (Guckenheimer v. Angevine, 81 N. Y. 394 ; Stevens v. Brennan, 79 N. Y. 254 ; Hathorne v. Hodges, 28 N. Y. 486 ).

It was therefore error to exclude evidence of the representations made by the vendee at the time of the purchase, the falsity of these representations, and the fact that the

p. 241
representations were relied on in making the sale, and, generally, evidence tending to show the fraudulent intent of the vendee in making the.purchase.

Besides, the defendant did not show that he detained the goods under any process of court, and the jury were erroneously directed to find a verdict for the defendant.

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

Judgment reversed, with costs to abide event.

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