Mets v. Moss — 43 N.Y. St. Rep. 815

Majority

p. 815

George De Mets, Resp’t, v. Frank Moss, Ex’r, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Decedent’s estates—Conversion—Proof of ownership.

On a reference of a claim for conversion against an ■ estate the plaintiff testified that the goods in question were given to him, but subsequently-testified that they were a wedding present; that they were given to himself and wife, and that he was not present when the gift was made. Reid, that the evidence was too slight to justify the maintenance of a claim •against the estate of a deceased person who had. been in possession of the goods for many years before his death.

Appeal from judgment entered upon report of a referee.

8. B. Brague, for app’lt; Coles Morris, for resp’t.

The plaintiff presented a claim against the defendant for conversion by Maltby J. Lane, deceased, of ■certain furniture. The claim was rejected and referred to a referee, who found for the plaintiff. The claim was for certain suits of furniture which it appeared had been in the possession of Maltby J. Lane, deceased, for a considerable period prior to his «death, and which it is alleged he sold and converted shortly prior thereto.

It is not necessary to discuss at any great length the evidence cri this case, because there is one feature which is plainly presented and which requires a reversal of the judgment and a new reference.

During the trial much evidence was introduced of personal transactions between the plaintiff and the deceased, and in fact the claim was made out largely by such improper evidence. But as to a portion of the property for which a recovery has been liad, there was not the slightest proof of ownership in the plaintiff; • and the amount of credence which is to be placed upon the plaintiff’s testimony is strikingly exemplified by his method of testifying in respect thereto, tie testified that the brother of his wife gave him that suit. Upon being asked was it a wedding present? he answered “ I suppose so; I was on friendly terms at that time with Richard H) Lane; I don’t remember what he said when he ;gave that bedroom suit” And then in answer to a question whether that bedroom suit was not presented to bis wife, he said; ‘“It was. presented to us both.’-’ And then in another part of the examination he swore that the present was made to himself and his wife together; and yet in answer to the question: “ Do you mean by that answer that you was included in that present ?’”

p. 816

Ms reply was: “ I was not there when the gift was given thus-showing that he knew'nothing about the gift or its nature. And this is the only evidence tending to show that the plaintiff was-the ownerof this property. It was a wedding present'given by his wife’s brother, and the plaintiff, without having any knowledge further than that, claims the property as his own. This-seems altogether too slight evidence to justify the maintenance of a claim therefor against the estate of a deceased person who had been in possession of the furniture many years before his death.

We think it is a very grave question as to whether or not the-proof was not amply sufficient to show that the debt had been outlawed before the death of Lane. It appears from the evidence? of this reliable witness that a demand was made for this furniture-as far back as 1882, and refused. And then, after he sees what, the effect of such testimony is, he attempts to retract what he had. said, and claims that they submitted gracefully when Mr. Lane refused to give up the furniture.

We are of opinion that the judgment should be reversed, and a new referee appointed to pass upon the claim, with costs to the? appellant to abide the final result of the proceeding. .

O’Brien, J., concurs._