Majority
p. 335Bannwart v. First Bohemian Brewing Co. et al. (Common Pleas of New York City and County, General Term. February 3, 1890.)
Headnote
Appeal—Review—Weight of Evidence.The general term of the New York common pleas will not reverse a judgment of the district court of the city of New York on a controverted question of fact, unless there is a clear preponderance of evidence against it.
Appeal from fourth district court.
An action of claim and delivery, brought by Theresa Bannwart. The First Bohemian Brewing Company and others appeal from the judgment rendered in favor of plaintiff.
Argued before Larremore, C. J., and Bookstaver and Bischoff, JJ. Morrison & Kennedy, for appellants. S. Mullen, for respondent.
The action was brought for the claim and delivery of certain personal property claimed by the plaintiff under a chattel mortgage which was past due. As to the chandeliers covered by the mortgage, there is no
p. 336
claim whatever that either of the defendants were at any time the owners of them, and consequently the mortgagor, Shulte, had the right to mortgage or sell them, at his pleasure. As to the remainder of the property, the appellant the First Bohemian Brewing Company was at one time the owner. On behalf of plaintiff, it is claimed that the company sold these goods to the mortgagor, Shulte, absolutely, for $500, to be paid in installments of 15 per cent, of Lhe amount of beer sold by Shulte, as the business went on; and a bill is introduced which goes to corroborate this contention. It is true the defendants deny there was any such absolute sale made; but the evidence shows that subsequently Shulte gave them a mortgage upon the same goods, and had it recorded, as he claims, at their request. At any rate the question was one of fact; and, under the well-established rules of this court, the judgment will not be reversed, unless there is a greater preponderance of evidence than appears in this case. All concur.