Susman v. Whyard — 54 N.Y. St. Rep. 758

Majority

p. 758

Israel Susman, Resp’t, v. Grace N. Whyard, App’lt.

(Supreme Court, General Term, Second Department,

Filed September 11, 1893.)

Headnote

Bill op sale—Mortgage.

Defendant’s husband executed and delivered to plaintiff a paper in the form of a bill of sale in consideration of $400, which provided that $2.50 a week was to be paid for the use of the property, which as left in the possession of the vendor, and that on payment of the $400 the property would be resold to him. Defendant claims under a sheriff’s sale on execution against her husband. In an action to replevy the goods the lawyer who drew the bill of sale testified that it was intended as a mortgage, but plaintiff testified that it was absolute and the consideration fully paid, and there was evidence that there was no intention to defraud creditors, lleld, that a finding in favor of plaintiff would not be disturbed.

(Dykman, J., dissents.)

Appeal-from judgment in favor of plaintiff, entered upon verdict ip action of replevin.

The property claimed by plaintiff was included in a bill of sale

p. 759

to him, executed by the husband of defendant,' which provided that upon repayment of the sum of $400 the property should be resold to him, and also that said property should remain in his possession, he agreeing to pay the sum of $2.50 per week for the use of said mentioned property.

A. S. Tompkins, for app’lt; W. H. H. Ely, for resp’t.

The defendant is the wife of Wm. W. Whyard. He executed to the plaintiff a paper in form of a bill of sale on the 28th of October, 1890. The plaintiff claims title to the property conveyed by it to him. The property was left in the possession of the vendor and by the bill of sale the sum of $2.50 a week was to be paid for the “ use of the said mentioned property." The defendant claims title under a sheriff’s sale thereof under execution against Wm. W. Whyard. The only question litigated on the trial was whether this bill of sale was a mortgage or a bill of sale. The lawyer who drew it gives evidence tending to show that the paper was a mortgage. That the loan was either $250 or $400, and that the $2.50 per week was possibly usurious. The plaintiff gave evidence tending to show that the bill of sale was absolute. That the consideration was $400, and was all paid and that the rent reserved for the use of the property was what it purports to be in the bill of sale. The jury found for the plaintiff. There is no reason to reverse this verdict on appeal. The attorney who drew the paper apparently drew a bill of sale for a mortgage, under his testimony, and his evidence was probably weakened by .the fact that an unrecorded personal mortgage was of no use as a security, which fact was discussed and a bill of sale given instead. Assuming the bill of sale and the payment of the consideration, the possession of the property in the vendor subsequent was fully explained and shown to have been in good faith and without any intent on the part of either party to defraud the creditors of the vendor. The charge of the county judge was ■eminently fair. The jury were told that if the bill of sale was, in reality, given for a loan, it was a mortgage and void as against the creditors of the vendor. 'That if the bill of sale was real and was not made in good faith, then it was void. The jury has found that the bill of sale was absolute, and that the property was left in the hands of the vendor under a covenant for rent for the use of it, and that the paper was made in good faith and without any intent to defraud creditors.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., dissents.