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Katsky v. Feist

49 N.Y. St. Rep. 636 Court Brooklyn City Ct. Decision date 1892-12-27 English

Delivered by Van Wyck, J.

Contents

Majority

p. 636
William W. Katsky, Resp’t, v. Max Feist, Impl’d, App’lt.
(City Court of Brooklyn, General Term,
Filed December 27, 1892.)

Headnote

Conspiracy—Evidence.
In an action for conspiracy in endeavoring to ruin plaintiff’s assignor by means of an excessive levy under an attachment, evidence to show that judgment in the attachment action was given against said assignor by default is admissible to negative such alleged conspiracy.
Appeal from judgment in favor of plaintiff, entered upon verdict for $650, and from order denying motion for a new trial.
Action to recover damages for an excessive levy under an attachment, and for trespass upon the premises and business of one Adolph Weinhandler, a merchant doing business in the city of Brooklyn.
Ira Leo Bamberger and Mitchell May, for resp’t; J. W. & C.W. Ridgway (Henry B. Twombly, of counsel), for app’lt.

The complaint alleges that the defendants, Goodman (a constable) and Feist (who was the plaintiff in an action against one Weinhandler, the assignor of Katsky), combined and conspired together for the purpose of ruining and injuring the said Weinhandler, and used, in carrying out such conspiracy, a warrant of attachment (issued in Feist against Weinhandler), viz., for the purpose of unlawfully and wrongfully seizing the property of Weinhandler and procuring the delivery thereof to said Feist. To establish such conspiracy, plaintiff was allowed to show that such an attachment was granted, and that defendánts seized the property of Weinhandler and caused it to be sold. The court, under objection and exception, would not allow the defendants to show that judgment was given against Weinhandler by default in the action in which the attachment was granted, and that the property was sold under such judgment. We think this evidence would have tended, at least, to negative the alleged conspiracy, and, therefore, should have been admitted. We deem it unnecessary to discuss the other questions raised on the appeal, as the judgment and order must be reversed for this error, and new trial granted, with costs to appellants to abide the event.

Clement, Cb. J., concurs.