Mann v. City of Brooklyn — 45 N.Y. St. Rep. 14

Majority

p. 14

William B. Mann, Resp’t, v. The City of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Vebdict—Conflicting evidence.

In an action to recover the value of bonds, which are claimed by defendant to have been stolen, the evidence as to whether plaintiff was a bona fide holder for value was conflicting. Feld, that this question could only be determined by the- jury, and that their decision thereon would not be disturbed where there is evidence to support it.

Appeal from judgment in favor of plaintiff, entered on verdict.

Action to recover the amount of two municipal bonds known as “ permanent water loan bonds ” Nos. 3848 and 3850, payable-July 1,1886. Plaintiff became the holder of the bonds in the-following manner:

The plaintiff was largely interested in real estate transactions, and to assist him therein he obtained a large number of -loans-from one W. I. Stevenson, a broker of Philadelphia, giving him judgment notes therefor. In January, 1884, he applied for a still further loan from Stevenson, who loaned him the bonds in question to raise money thereon. These bonds the plaintiff pledged to the Guarantee Trust Company, in January, 1884, and paid the interest on the loan up to December, 1887, when the trust company sent him notice that the bonds were being redeemed by the city of Brooklyn. He then paid back the loan,- and received the-bonds on or about the 25th of December, 1887.

Prior to this date, and prior to the date of the maturity of. the bonds (July, 1886), the plaintiff, on or about the 26th day of May, 1885, on a settlement of his account with Stevenson, became the owner of these bonds, paying therefor a premium on the; face value.

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In July, 1888, plaintiff demanded payment of the comptroller, which was refused.

. The defendant claimed that the bonds were stolen from the true owner, and that the plaintiff was not an innocent purchaser for value without notice.

A witness, Jansen, testified that the bonds in question had been stolen from him in September, 1874, and that that fact was published in the papers on or about that date.

The plaintiff testified that in 1888 he first knew that there was anything wrong with the bonds, when he received word from his counsel that the comptroller had refused payment

A. F. JenJcs (Horace Graves, of counsel), for app’lt; Jas. W, Bidgway (Henry B. Twombly, of counsel), for resp’t

This case in its trial involved only one question of fact about which there could be any substantial dispute, to wit, whether the plaintiff purchased the bonds in question for full value and before due without any notice of infirmity of the title to them in the person from whom he purchased them, or, in other words, we will, in place of the last clause, say without any notice whatever that the bonds had been stolen, or an innocent purchaser for value.

This question could only be determined by a jury, and even though the decision of that tribunal was different from what we would have found on the whole evidence, we are not at liberty to set it aside if there is sufficient evidence to support it.

The testimony was somewhat conflicting, and we are not able to say that it was not quite equally balanced; indeed it was one of those cases where different men of honesty and intelligence might have drawn different conclusions from the evidence as to the issue presented. It is not necessary, therefore, to pass upon the question raised by the plaintiff in his brief, based upon the fact that there appears to be no order denying a new trial upon the minutes, or exception to the granting of such an order.

We think the charge was accurate in law, and clearly and fairly presented the issue upon the facts to the jury.

.The exceptions taken by defendant, from one to thirteen inclusive, do not appear to be now urged upon the defendants’ brief; but if we are to consider them they are either without merit in fact, or are so general as to fail to raise any material point wherein the defendant was prejudiced.

The exceptions to request to charge from one to four inclusive have no merit, and were either covered by the charge or related to matters clearly within the province of the jury to decide.

The fifth request was also fairly covered by the charge.

The seventh and eighth requests were not warranted by the state of the evidence.

The same is true of the ninth request. The tenth was charged and the eleventh was properly refused, and so of the twelfth, besides it was substantially charged.

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that contain any error sufficient to warrant a reversal of the, judgment

Judgment affirmed, with costs.

Barnard, P J., and Dykman, J., concur.