Enggren v. Prinz — 39 N.Y. St. Rep. 898

Majority

p. 898

Lizzie Enggren, Resp’t, v. Christian J. Prinz, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Cohversioh—Title to febsonal pbopebty.

In an action for conversion of a horse of plaintiff’s which had been levied upon for a debt of her husband and sold to defendant, plaintiff claimed to own it by an independent title. The defense proved a chattel mortgage including said horse given by her husband to plaintiff after the commencement of suit against him. It appeared that plaintiff did not examine the mortgage or know that it included the horse. Held, that a judgment in her favor would not he disturbed.

Appeal from judgment of the county court of Queens county in favor of plaintiff.

Action to replevin a. horse claimed to belong to plaintiff which had been seized by a constable on execution against the plaintiff’s husband and sold by him to defendant. The answer set up such levy and sale, and alleged on information and belief that the horse was the property of plaintiff’s husband. On the trial evidence was admitted, under objection, of a conversation between plaintiff and the constable at the time of the levy, in which plaintiff claimed the horse as hers.

W. J. Stanford, for app’lt; William W. Gillen, for resp’t.

—This is an action for the conversion of a horse. The issue raised by the answer was that the horse belonged to plaintiff’s husband and the taking was by execution and levy under a judgment in favor of one Nicholas Ryder. It appeared upon the trial that the husband of plaintiff had executed a chattel mortgage on certain property to his wife and that this horse was included in it. The wife claimed an independent title and she never saw the mortgage. It was put on record by her husband without her knowledge. The conversation between the plaintiff and the constable who made the levy was hearsay but it was wholly immaterial. The constable demanded fifty dollars and the plaintiff said she had nothing to do with her husband’s debt. The constable said he would levy and the plaintiff told him it was her horse. There is nothing presented by the case which calls for a reversal of the judgment.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.