Razy v. Whittick — 56 N.Y. St. Rep. 776

Majority

p. 776

Asa Razy, Resp’t, v. Christian Whittick, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January, 1894.)

Headnote

Appeal—Verdict.

Where questions of fact are presented which are proper for the determination of the jury, their verdict will not he disturbed on appeal.

Appeal from a judgment of the supreme court, special term, entered in Steuben county.

George D. Reed, for app’lt; Murray R. Page, for resp’t.

This action was originally tried in justice’s court in Steuben county before a jury. The defendant was successful in that court and an appeal was taken from the justice’s judgment to the county court of Steuben county. The judge of that court being disqualified to hear the appeal so certified and it was transferred into the supreme court, and was heard at a special term thereof, and the justice’s judgment was reversed, and from that judgment an appeal was taken to this court.

The action was brought against the defendant for wrongfully converting a row-boat of the value of ten dollars.

The plaintiff claimed title to it as a purchaser at a sale upon the foreclosure of a chattel mortgage given by one Mi-. Lovell, the defendant claimed title to the boat as a purchaser at a sheriff’s sale upon an execution issued upon a judgment in favor of the Eochester Distilling Company against Lovell.

' The case was tried in the justice’s court in a careless and unsatisfactory manner. It was not made to appear upon the trial when the mortgage under which plaintiff claimed was given or what property it covered except as it may be claimed to have inferentially appeared from the testimony of the plaintiff that he bought the boat at a chattel mortgage sale.

It was not shown that the mortgage had ever been filed. Lovell, the mortgagor, testified that he took the mortgage to get it filed, but when and where it was filed was not made to appear or that he in fact ever filed it.

Lovell was a son-in-law of the plaintiff. The record shows that the mortgage was received in evidence, but it is not printed in the case.

The plaintiff testified: “ I bought the boat at mortgage sale at Loon Lake; Page’s mortgage sale; chattel mortgage sale. Mr.

p. 777

Page, I suppose, made the sale; he sold the property. Do not know as the boat was included in the mortgage; cannot tell the day mortgage sale took place; Mr. Green, the deputy sheriff, was present at the sale and objected to it; did not know there was going to be a sale until the day of sale.” It was not made to appear what plaintiff paid for the boat. The evidence was conflicting as to whether the plaintiff ever had possession of the boat; he testified that he did at one time, but did not tell when. The boat was manufactured for Lovell in the spring of 1890. There was no evidence tending to show that he had possession of it from the time it was built until its sale to the defendant under the execution aforesaid, which sale took place on the 16th day of August, 1890. The defendant purchased the boat at an auction sale under an execution and paid the sheriff for it. The plaintiff failed to establish a satisfactory title to the boat. The most that can be claimed is that questions of fact were presented which were proper for the determination of the jury. They found against plaintiff and their verdict should not have been disturbed. The judgment appealed from should be reversed and that of the justice affirmed, with costs of the appeal in this court and of the special term.

Dwight, P. J., and Haight, J., concur.