Simpson v. Pilpoul — 77 Misc. 108

Majority

p. 108

John F. Simpson and Charles H. Simpson, Doing Business as J. Simpson & Co., Respondents, v. Bertha Pilpoul, Appellant.

(Supreme Court, Appellate Term, First Department,

June, 1912.)

Headnote

Pawnbrokers — actions against—-pledges generally — provisions of •statutes and ordinances—■ conversion.

After certain diamond rings had been placed in pawn with plaintiffs they issued a second or stop ticket, as provided by section 44 of the General Business Law, to defendant, a sister of the pawnor, upon her claim that she was the owner of said rings and had lost the pawn ticket. Thereafter, on presentation of the ticket issued to defendant, plaintiffs permitted her to redeem the rings upon he">- making an affidavit of ownership thereof and of the loss of the original ticket. Subsequently the wife of the pawnor presented the original ticket and obtained judgment in an action for the conversion of the ring. Held, that defendant herein was liable to' plaintiffs for the damage naturally occasioned to them by their reliance on the allegations of the affidavit of ownership.

Though the judgment roll in the action for conversion was properly admitted to establish that plaintiffs herein had- suffered damage by reason of their reliance on the statements of defendant’s affidavit of ownership of the ring, said judgment roll was. not conclusive upon the defendant herein as to her right to the possession of the rings, in the absence of notice to her to come in and defend the action for conversion, in which, though a witness for defendant, she was given no option to take charge of the defense.

p. 109

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered upon the verdict of a jury rendered in favor of the plaintiffs and from an order denying a motion for a new trial.

Spiro & Wasservogel, for appellant.

Clarence K. McGuire, for respondents.

The plaintiffs, pawnbrokers, received three diamond rings from a man named Brodsky, and issued a pawn ticket to him. Thereafter, the defendant, a sister of Brodsky, claiming that she was the owner of the rings and that she had lost the pawn ticket, applied to the plaintiffs for a second or stop ticket, as provided by section 44 of the General Business Law. The plaintiffs issued such a ticket to defendant, and, thereafter, on presentation of the ticket so issued, permitted the defendant to redeem the diamonds, at the same time receiving from her an affidavit setting forth her ownership of the rings and her loss of the ticket. After the plaintiffs had parted with possession of the rings, Brodsky’s wife presented the original ticket, and demanded the rings. When the plaintiffs failed to deliver the rings to 'her, she brought an action against them for conversion. The sole issue raised by the pleadings in that case was the title of Mrs. Brodsky to the rings. The plaintiff in that case testified that the rings belonged to- her. The defendants in that case produced the defendant in this case as their witness, and she testified that the rings- belonged to her. The jury decided the issue of fact raised by the conflict of testimony against the plaintiffs in this case and the defendants in that action. Thereupon, they commenced this action against this defendant to recover the damages which they have suffered by reason of her claim that the rings belonged to her. Having secured the rings by means of an affidavit setting'forth that they belonged to her, if that affidavit was false, she was bound to respond to- the plaintiffs for the damages naturally "occasioned to them by

p. 110

their reliance upon the allegations of the affidavit. Upon the trial of the action brought for this relief, the plaintiffs introduced in evidence the judgment roll in the action brought by Mrs. Brodsky against them. The judgment roll was properly admitted in evidence to establish that, by reason of their reliance on the allegations of defendant’s affidavit, they had suffered damages. The trial justice, however, not only admitted the judgment roll as evidence of plaintiffs’ claim, but held that the judgment roll in that action was conclusive upon this defendant upon the issue of her right to the possession of the rings.

In this ruling, I think the trial justice was in error. The general rule is, undoubtedly, that a judgment is binding only upon the parties to the action and those claiming in privity with, them. This defendant was not a party to that action, nor in privity with these plaintiffs. She claims an absolute right to the rings now in her possession, and she claims to have derived' this right from neither of the parties in that action. It is true that she is, in law, liable to the defendants in that action for any damages which they might be obliged to pay, if it be established that the rings belonged to the plaintiff in that action. Since the real issue in that action was whether or not the rings belonged to the defendant in this action, it might well be that the defendants in that action might have given her notice to come i„n and defend that action, and in that event the judgment would have been conclusive against her. Prescott v. LeConte, 83 App. Div. 483 , 487 and cases therein cited; affd., without opinion, 178 N. Y. 585 . Eo definite form of notice is necessary, and the plaintiffs claim that the fact that the defendant was' produced as a witness was sufficient notice to her. The mere fact, however, that she was a witness gave her no right to produce, examine or cross-examine witnesses, or to control the proceedings in any way, and this is a very material right if she is to be bound by the judgment. If the judgment is to bind the party ultimately liable, the notice must be sufficient to enable her to exercise an option whether she will take charge of the defense, and no such notice was shown in this case. The proceedings of

p. 111

these plaintiffs show no willingness to allow her to take charge of the defense in that case, and did not even apprisq her that the sole issue they wished to raise was her right to possession. It may well be that, in addition to showing facts on this issue, they desired to rest upon some defect in the title of the plaintiff in that action.

The defendant herein moved to set aside the judgment in the court below upon these contentions, but the trial justice denied the motion on the authority of Railroad Equipment Co. v. Blair, 145 N. Y. 607 . That case, however, is not in point. In that case, the plaintiff in a replevin suit was permitted, as part of its chain of title, to show a judgment in another action. The court said: “ The former judgment in this case operated as a transfer from the Construction Company to the Oar and Equipment Company of all its rights, and has the same force as if it had been made by an instrument in form executed by the Construction Company to the plaintiff in the judgment.” The court itself interpreted the effect of the admission of the judgment, stating: “ The real fight in issue in this case was not affected by the former judgment. It did determine, however, as between these parties, that the plaintiff stood in the shoes of the Construction Company.” In the same manner, the judgment in the action between these plaintiffs and Mrs. Brodsky conclusively established that the plaintiffs are standing “ in the shoes of ” Mrs. Brodsky. It does not affect the real issue in this case, viz.: whether the diamond rings actually belonged to Mrs. Brodsky or to this defendant.

Judgment, should, therefore, be reversed, and a new trial ordered, with coste to appellant to abide the event.

Seabtjry and Bijue, JJ., concur.

Judgment reversed.

Cases cited

Railroad Equipment Co. v. Blair 145 N. Y. 607 N.Y. 1895-03-12 p. 111

Statutes and regulations cited

General Business Law p. 108, p. 109