Rheinfeldt v. Dahlman

The action was originally against the sheriff of New York county to recover §1,750 damages for trespassing upon the premises of the plaintiff, December 10, 1895, breaking up his

“Every sale made by a vendor of goods and chattels in Ms possession, * * * unless the same shall be accompanied by an'immediate delivery, and be followed by an actual and continued change of possession of the thing sold, * * * shall be presumed to be fraudulent as against the creditors of the vendor, * * * and shall be conclusive evidence of fraud, unless it be made to appear, on the part of the person claiming under such sale, * * * that the same was made in good faith, and without any intent to defraud such creditors.” 2 Rev. St. (9th Ed.) p. 1886, § 5.

It appears that immediately after the sale the plaintiff employed the same assistants that had before been in the place, and left the vendor in charge with the general management of the business, to buy and sell as he had previously done, and with authority to negotiate and sell the entire establishment to any customer he might find on suitable terms. The name of the vendor as proprietor was allowed to remain upon the windows of the store and on the delivery wagon, and all the plaintiff did in the way of asserting ownership was to c,all at the store early in the morning, before his duties called him to his employment (which was with Hurd & Co., stationers, corner of Grand and Crosby streets), and again in the evening, when his work was done, take the cash, and close the place. These facts do not establish the actual and continued change of possession contemplated by the statute. To take the case out of the statute, the acts of the parties must have been of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer, and the change of possession necessary is an open and public one, which is to continue and be manifested by outward and visible signs, such as to render it evident that the possession of the judgment debtor has ended, for he must cease from his apparent as well as real ownership. Topping v. Lynch, 2 Rob. (N. Y.) 484; Spotten v. Keeler, 22 Abb. N. C. 105 ; Crandall v. Brown, 18 Hun, 461 ; Blant v. Gabler, 77 N. Y. 461 ; Steele v. Benham, 84 N. Y. 634 ; Stimson v. Wrigly, 86 N. Y. 332 ; Preston v. Southwick, 115 N. Y. 139 , 21 N. E. 1031 . Accordingly, it was held in Butler v. Stoddard, 7 Paige, 163, 165, that:

“The nominal appointment of the seller, as the agent of the buyers, to retain the possession and retail the goods and collect in the debts for them, without any visible change in the mode of doing business at the store, was not a change of possession within the intent and meaning of the statute on this subject. The sale must be accompanied by an actual and continued change of possession as well as a

nominal and constructive change, or the transaction will be deemed fraudulent as against creditors; and a construction which would allow the vendor or assignor of a store of goods to continue in possession thereof, and to sell them out as the agent of the purchaser or assignee, would render this statutory provision for the prevention and detection of frauds a mere nullity.”

The sale from Gustav A. Rheinfeldt to his brother, the plaintiff^ was certainly presumptively fraudulent as against the creditors" of the vendor. The defendants sought the benefit of the statute by a motion to dismiss the complaint, but this was properly denied, because the question yet remained whether the plaintiff, upon whom the onus rested, had successfully rebutted the presumption by making it affirmatively appear that the sale was made in good faith, and without any intent to defraud creditors, and this was exclusively for the jury (2 Rev. St. [9th Ed.] p. 1888, § 4), whose verdict thereon is generally regarded as conclusive (Smith v. Acker, 23 Wend. 653 ; Prentiss v. Slack, 1 Hill, 467 ; Hanford v. Artcher, 4 Hill, 272 ; Butler v. Miller, 1 N. Y. 496 ; Thompson v. Blanchard, 4 N. Y. 303 ; Griswold v. Sheldon, Id. 581, 593; Gardner v. McEwen, 19 N. Y. 123 ; Miller v. Lockwood, 32 N. Y. 293 ; Swift v. Hart, 12 Barb. 530 ; Allen v. Cowan, 28 Barb. 100 ; Siedenbach v. Riley, 111 N. Y. 560 , 19 N. E. 275 ; Wallace v. Nodine, 57 Hun, 239 , 10 1ST. Y. ■Supp. 919).

At the defendants’ request the trial judge charged the jury as to the presumption created by the statute in a case where there is no continued change of possession, and left to them for decision the questions of bona tides of the sale, delivery of possession, and actual and continued change thereof. These seem to have been proved to the satisfaction of the jury, and, there being no dispute as to the taking by the sheriff, they awarded the plaintiff a verdict, assessing the damages at $1,200. The defendants had the undoubted right to show, if they could, that the property was sold to prevent the collection of their debt, and that the plaintiff participated in the fraudulent intent, for this would have avoided the transaction, although a fair consideration passed. Waterbury v. Sturtevant, 18 Wend. 353 , 364; Billings v. Russell, 101 N. Y. 226 , 4 N. E. 531 ; Dudley v. Danforth, 61 N. Y. 626 . But the proofs fail to establish any such unlawful design.

We are requested by the defendants to review several rulings to the admission and exclusion of evidence; but in some instances the errors were either cured by the subsequent admission of the testimony, or there was no appropriate exception to the ruling authorizing review. The same comment is applicable to objections made to certain portions of the charge presented for consideration. For example, the defendants argue that the question of actual and continued change of possession was on the evidence one of law, which the court should have decided in their favor; yet they did not request the trial judge so to rule by instructing the jury to that effect, and there is no exception to the manner of submitting the question which warrants us in assigning reversible error. Certain portions of the charge criticised were so modified by appropriate instructions contained in other parts thereof that, as a whole, it was unobjec

It appeared upon the trial that on December 5, 1896, three days after the purchase by the plaintiff, the latter, through his brother Gustav, made a sale to Jacob Wormser of the store, with the lease, "fixtures, and delivery wagon, for $500, on which $50 was paid at the time, the remaining $450 to be paid on December 11th; but the levy made on the 10th prevented consummation. The sale toWormser embraced the entire subject-matter of the transfer to the plaintiff excepting the stock, valued by him at $500. So that we find the plaintiff, three days after paying $700 for certain articles, selling them for $200 less than cost. The circumstance was not conclusive on the subject of value, but was evidence bearing upon it. While an offer made by a third person to a party for his property is not competent evidence in favor of the party to whom it is made of the value of the property (Hiñe v. Railway Co. [17. Y. App.], 30 27. E. 985), there is, in sound reason, a distinction in this respect between an offer as evidence against the party who made or accepted it, and as evidence in his favor. See authorities collated in note to above case. The voluntary act of the plaintiff in fixing the value at $500 was, as an admission, if nothing more, evidence against his interest, to be weighed with the other proofs of value. The trial judge nevertheless charged the jury that what the plaintiff was willing to sell for was not proof of value. The-defendants insist that this ruling was erroneous, but we find no exception which authorizes its review on this appeal.

Under a general exception in these words: “We likewise except to each and every one of his honor’s charges in which he charged as requested by the plaintiff,” the defendants insist upon having reviewed a number of propositions charged at the plaintiff’s request, most of which were correct. We cannot do this. The rule is,, if the charge of the court contains several propositions, and some are unobjectionable, a single exception to the whole charge, and to éach and every part of it, will present no question for review on appeal. This formula applies to requests to charge as well as to-the charge in the first instance. See cases collated in Baylies, New Trials, pp. 183, 184; also Huerzeler v. Railroad Co., 139 N. Y. 493 , 34 N. E. 1101 . The fundamental principle is that an exception, to be available, must so clearly and unmistakably point out the proposition or remark to which it is intended to, apply, that no' doubt is left as to the real purpose of the exception. McGinley v. Insurance Co., 77 N. Y. 495 ; Langley v. Wadsworth, 99 N. Y. 61 , 1 N. E. 106 ; Lindhelm v. Duys, 11 Misc. Rep. 16 , 31 N. Y. Supp, 870 .

The exception to the remark of the trial judge that Culbertson was a disinterested witness is without merit. He had not been-an employé of the plaintiff since the seizure on December 10, 1895. He had no possible interest in the result of the controversy, and nothing to gain or lose by departing from truth. There was no-existing relationship to indicate bias or tend to impair his credibil

The defendants also criticise that portion of the charge wherein the trial judge told the jury that, notwithstanding the expert evidence, they were the sole arbiters of value. The ruling finds support in Reves v. Hyde, 14 Daly, 431 , Head v. Hargrave, 105 U. S. 45 , and Muller v. Ryan, 2 N Y. Supp. 736 ; and, even if held to go too far, it is without an exception which authorizes its review.

The power of this court to review the judgments of the city court ivas considered, and the necessity of exceptions clearly presenting the legal questions for review fully discussed, in Ebenreitter v. Dahlman and Briscoe v. Lift (decided at the December, 1896, term) 41 N. Y. Supp. 559 , 1107, to which counsel are referred. It is similar to that exercised by the court of appeals, and we may cite the language of that court in Schwinger v. Raymond, 105 N. Y. 648 , 11 27. E. 952:

“The court below had the power to set aside the verdict as contrary to the evidence without any exception, but in this court we can consider no objection which is not based upon some exception taken at the trial. Therefore, however unjust this verdict may be, upon the facts appearing in the case, we are powerless, on that account, to give the defendant any relief.”

Several exceptions require notice. The witness Culbertson testified to the value of the stock taken. He had been a butcher for a number of years; at one time did business on his own account; Ixad sold meat at wholesale and retail; knew the market values; was employed in the plaintiff’s business at the time of the levy; had'previously been in the employ of the plaintiff’s brother, from whom the place was purchased; and was familiar with the stock on hand, as well as its value. He was certainly qualified to testify as an expert. Lawson, Exp. Ev. 439; Kerr v. Maguire, 28 N. Y. 450 ; Abb. Tr. Ev. 310; Cow. Treat. § 1475; Merrill v. Grinnell, 30 N. Y. 594 ; Robinson v. Lewis, 7 Misc. Rep. 536 , 27 N. Y. Supp. 989 ; Jarvis v. Furman, 25 Hun, 391 . His competency to express an opinion was not challenged at the trial, and cannot be questioned now. An objection taken by an appellant to evidence must be sustained on appeal, if at all, upon the ground that it was placed at the trial. Eisert v. Brandt, 10 Misc. Rep. 393 , 31 N. Y. Supp. 121 ; Filio v. Jones, 2 Abb. Dec. 121; Tooley v. Bacon, 70 N. Y. 34 ; People v. Murphy, 135 N. Y. 450 , 32 N. E. 138 . Besides, what a party pays for property is some evidence of value. Hoffman v. Connor, 76 N. Y. 121 ; Hangen v. Hachemeister, 114 N. Y. 566 , 573, 21 N. E. 1046 ; Bird v. Everard, 4 Misc. Rep. 104 ,106, 23 N. Y. Supp. 1008 . This, combined with the opinion of the expert, constituted satisfactory proof. The witness Wormser testified without objection that to replace the fixtures taken would

The jury returned a verdict in favor of the plaintiff for $1,200. Upon the coming in of the verdict the plaintiff’s counsel said the interest was $20, and the verdict seems to have been recorded for $1,220. Eo objection appears to the recording of the verdict at that sum; but, after the record thereof, the defendants moved to set aside the verdict on account of the addition of the $20. This came too late. Whether the case is one in which interest was in the discretion of the jury, or followed as a necessary part of complete indemnity, need not, therefore, be considered. The point urged by the defendants that the addition of the $20 is erroneous, because it does not appear that the jury had not already taken interest into account in arriving at the verdict, was proper subject for inquiry while the jury were present, and. before the verdict was recorded. If objection had been made, the matter could then have -been effectually disposed of by directing the jury to retire and dispose of the question. Baylies, Trial Prac. 246; Clark v. Lude,.

The judgment must be affirmed, with costs. All concur.