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Lewis v. Flack

31 N.Y. St. Rep. 282 Court N.Y.C.P. Decision date 1890-06-02 English

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p. 282
Charles Lewis et al., App’lts, v. James A. Flack, Sheriff, Resp’t.
(New York Common Pleas, General Term,
Filed June 2, 1890.)

Headnote

Replevin—Fraud—Evidence.
In an action by the vendor of goods, who was induced to sell them by fraudulent representations, to recover such goods from the sheriff, who has levied upon them as property of the vendee, evidence of the representations inducing the sale and their falsity are admissible.
Appeal from a judgment in favor of the defendant in the district court of the city of New York for the eleventh judicial district.
Nathan Lewis, for app’lts; David Tim, for resp’t.

This action was brought to recover the possession of certain property fraudulently obtained from plaintiffs by the vendee and levied on by the defendant as sheriff.

The sheriff was not a purchaser for value, and where a sale of goods has been induced By false and fraudulent representations on the part of the vendee, the vendor may reclaim and retake them from the possession of any one but a purchaser in good faith for value; and evidence of the false and fraudulent representations inducing the sale are admissible in an action brought against the sheriff to the same extent that it would be against the original vendee. Guckenheimer v. Angevine, 81 N. Y., 394 ; Stevens v. Brennan, 79 id., 254; Hathorne v. Hodges, 28 id., 486.

It was, therefore, error to,exclude evidence of the representations made by the vendees at the time of the purchase, the falsity of these representations, and the fact that the representations were relied on in making the sale, and generally evidence tending to show the fraudulent intent of the vendee in making the purchase.

Besides, the defendant did not show that he detained the goods under any process of court, and the jury were erroneously directed to find a verdict for the defendant.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event

Larremore, Ch. J., and Bookstaver, J., concur.