Stark v. Grant — 42 N.Y. St. Rep. 36

Majority

p. 36

Frederick Stark, Resp’t, v. Hugh J. Grant, Sheriff, App’lt.

(New York Common Pleas,

General Term.

Filed December 7, 1891.)

Headnote

1. Sale—Fraud—Title.

A failure to take delivery and possession of goods on a sale merely raises a presumption of fraud, which may be rebutted by proof of a bona fide purchase for value, and if such evidence be given the question is for the jury.

2. Same—Forfeiture.

The mere fact that a person has committed an act which exposes his-goods to forfeiture at suit of the federal governmjnt does not deprive him of title. His title remains good as against all the world except the government, and as to it until judgment of forfeiture duly rendered.

Appeal from judgment of the general term of the city court, affirming judgment on a verdict, and from an order affirming-order denying new trial.

Replevin to recover chattels seized by defendant under execution against one Rosenthal. The answer put in issue the title of the plaintiff, and alleged the chattels to be the property of the judgment debtor.

The chattels in question consisted of a stock of segars and tobacco in Rosenthal’s store, which plaintiff claimed to have-bought at sheriff’s sale, but which he did not remove. Rosenthal continued to sell the same under his license until the seizure. Plaintiff had no license, and did not apply for one until after the-seizure.

Daniel P. Hayes, for resp’t; Fromme Brothers, for app’lt.

Affirmance of the judgment and order in the court, below concludes this court upon every question of fact, Bell v. Bartholomew, 12 Weekly Dig., 33; Walsh v. Schulz, 67 How., 186 , and the evidence conflicting upon the question of title, we-have no authority to challenge the validity of the verdict.

But, the appellant imputes error of law to the refusal to dismiss the complaint; and upon these grounds.: First, because there-was no proof of a purchase of the goods by plaintiff from Rosenthal. Yet the plaintiff testified positively and circumstantially to the fact of the sale, and the jury believed him. Second, because-the sale was void as to the judgment creditor, for lack of delivery and change of possession. It is familiar law that a failure-to take delivery and possession, pursuant to the statute, merely raises a presumption of fraud, which may be rebutted by proof of a bona fide purchase for value; and that if evidence be given to-repel the arbitrary inference of fraud, the question is for the jury, and their decision is conclusive. Thompson v. Blanchard, 4 N. Y.,

p. 37

303 , 306; Gardner v. McEwen, 19 id., 123; Allen v. Cowan, 23 id., 502; Tallman v. Kearney, 3 T. & C., 412; Wallace v. Nodine, 57 Hun, 239 ; 32 St. Rep., 657 ; Dudley v. Danforth, 61 N.Y., 626 . Here the evidence was abundant to authorize a finding by the jury that the plaintiff was a purchaser in good faith and for value. Third, because the plaintiff, having committed an act which exposed the goods to forfeiture at suit of the Federal government, had no title to them. But, the goods were the property of plaintiff except as against the United States, and as to the United States even they continued his property until judgment of forfeiture duly rendered. Tracey v. Gorse, 68 N.Y., 144 .

Appellant’s other exceptions are not of sufficient plausibility to require consideration.

Judgment affirmed, with costs.

Balt, Ch. J., and Bischoff, J., concur.