Diener v. Schwab — 58 N.Y.S. 362

Majority

p. 362

(27 Misc. Rep. 544.)

DIENER et al. v. SCHWAB.

(Supreme Court, Appellate Term.

May 24, 1899.)

Headnote

Sale—Bona Fide Purchaser from Vendee.

Reversal of judgment for plaintiffs in replevin, for goods sold and delivered by them to M. just previous to M.’s failure, is required by evidence, not contradicted or discredited, that defendant, in whose possession the goods were, bought them acting for F.; who paid the value therefor.

p. 363

Appeal from municipal court, borough of Manhattan, First district.

Action by Samuel Diener and others against Adolph Schwab. From a judgment for plaintiffs, defendant appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

August P. Wagener, for appellant.

Louis Levy, for respondents.

The action was for wrongful detention of personal property, and the answer a general denial. The plaintiffs brought replevin for goods which they had sold and delivered to -one Mandel just previous to Handel’s failure. The goods were found in the possession of the defendant, who claimed to have bought them acting for another person, one Fetterer, who testified that he had purchased and paid value for the goods, in which statement he was corroborated by the testimony of the defendant’s counsel and clerk. This evidence, tending to show property in a stranger and connecting the defendant himself therewith, being in nowise contradicted or discredited, requires the reversal of the judgment. Gerber v. Monie, 56 Barb. 652 ; Stowell v. Otis, 71 N. Y. 36 .

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

FREEDMAN, P. J., concurs; LEYENTRITT, J., in result.

Cases cited

Gerber v. Monie 56 Barb. 652 N.Y. Sup. Ct. 1869-04-06 p. 363
Stowell v. Otis 71 N. Y. 36 N.Y. 1877-10-02 p. 363