Sears v. Goldsmith — 1 N.Y. St. Rep. 776

Majority

p. 776

NEW YORK COMMON PLEAS,

GENERAL TERM.

Filed June 7, 1886.

RACHEL A. SEARS, Plaintiff and Respondent, v. JONAS G. GOLDSMITH, Defendant and Appellant.

Headnote

Pledge—When transaction a pledge and not a sale.

Appeal from judgment rendered at special term without a jury. The judge found that the delivery of a piano, which was the subject of this action, to the defendant, was upon a pledge thereof for a loan of fifty dollars, and not upon a sale of the piano, as claimed by the defendant, and gave judgment that plaintiff recover possession of the piano upon paying or tendering the amount due, with legal interest, viz.: $51.50; and if defendant were unable, or refused to deliver the piano, that plaintiff recover-its value, $200, less the said amount due.

The appellant states the questions involved in the case to be:

p. 777

Mrst. Whether the transaction between the plaintiff’s agent and defendant was a sale or a pledge.

Second. The value of the piano.

Third. Whether the action was properly brought against defendant.

The evidence leads-to but one conclusion: the transaction was a pledge. Despite the attempt of defendant to show by his testimony that the piano was sold outright to his wife, the probabilities all sustain the evidence of Mr. Sears, the plaintiff’s agent and son, that there was a pledge only for a loan. The taking by defendant of a bill of sale to his own wife, which purported on its face to be absolute, is consistent with the claim of plaintiff. It would seem that defendant adopted a false name to induce people to apply to him for-loans on the pledge of pianos, and the insertion of his wife's name in the bill of sale was evidently merely the adoption of still another name to keep his own out of the transaction, while he was and remained throughout the real party in interest.

As to the value of the piano there was much conflict; but I could not say that if I sat in the judge’s place and had the witnesses and this evidence before me, that I would have come to a different conclusion on this point. All that the defendant has to do in order to avoid being injured by this finding is to give up the piano and take his principal and interest.

I have examined the exceptions in the case, and do not find any that were well taken.

The judgment should be affirmed, with costs.

Bookstaver, J., concurring.