Knapp v. Gregory — 47 N.Y. St. Rep. 408

Majority

p. 408

Charles S. Knapp, Resp’t, v. James S. Gregory et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Chattel moiitqag-e—Evidence.

In an action "by a mortgagee of chattels to recover damages resulting from the seizure and sale of the chattels under a judgment against the mortgagor, it is incumbent upon him to show that his mortgage is free from fraud, and hence evidence as to the consideration for it is admissible and proper.

Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial on the minutes.

Joseph W. Gott, for app’lts; Thomas Watts, for resp’t.

—This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial based upon the minutes of the court.

The basal facts are these: In the month of October, 1890, Calvin B. Gale executed and delivered to the plaintiff and Richard D. Osborn a chattel mortgage upon farm stock and utensils.

■ The defendants, who were creditors of Gale, thereupon obtained judgments against him and issued executions thereon against the property .of Gale to the sheriff of Orange county, who sold the property under such executions.

Thereupon this action and one in favor of Osborn was commenced against the sheriff to recover the damages resulting from such sale, and the defendants were substituted as defendants in the place of the sheriff in the actions.

This action was tried at the circuit in Orange county, and the jury rendered a verdict in favor of the plaintiff for $700.

Like most cases involving a chattel mortgage, the validity of that instrument was the serious question litigated upon the' trial of this action. The counsel for the defendants conducted a searching inquiry into the consideration and the honesty of the mortgage, but there was evidence which the jury might believe sufficient to establish its honesty.

The appellants upon this appeal complain of the rulings of the trial judge, which permitted the plaintiff to prove the consideration for the mortgage, but they were not erroneous, on the con

p. 409

trary, the plaintiff was called upon to show the transactions free from fraud, and the best way to do that was to manifest its honesty.

It is quite true that there were contradictions and inconsistencies in the testimony of the plaintiff, but they all went to the jury with the entire evidence in the case, and we must assume that the truth was extracted.

The charge was so full and fair that- it escaped exception, and the finding of the jury under it cannot be disturbed.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.