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Sternwald v. Siegel

57 N.Y. St. Rep. 491 Court N.Y.C.P. Decision date 1894-02-05 English

Delivered by Bischoff, J.

Contents

Majority

p. 491
John Sternwald, Resp’t, v. Solomon N. Siegel et al., App’lt.
(New York Common Pleas, General Term,
Filed February 5th, 1894).

Headnote

1. Contract—statute of frauds.
A transfer of property, without other consideration than an oral promise on the part of the vendee to discharge certain specific demands against the vendor, is not within the statute of frauds and void because not in writing.
2. Trespass—Wrongful levy.
Parties, who actively participate and direct the marshal in the seizure of, and levy upon property, are trespassers equally with the marshal.
3. Appeal—Dismissal.
Where the defendant, at the close of the testimony, does not ask that the complaint be dismissed or a verdict be directed in his favor, he is precluded from ques'ioning the sufficiency of the evidence for submission to the jury.
4 Same—Objection.
An objection to the admission of evidence, or a motion to strike out an answer, where no ground therefor is stated, is of no avail.
Appeal from a judgment for plaintiff on the verdict of a jury; and from an order denying defendants’ motion for a new trial made on the minutes.
Action to recover damages for defendants’ trespass in causing plaintiff’s store to be entered and seized, its contents carried away and the business to be destroyed. The defense was that the store was entered and seized, and the contents levied upon, under an execution against property which was issued upon a judgment recovered by the defendants, and that the judgment-debtor was the owner of the store and contents at the time of the seizure and levy.
A. & L. Levy {Anthony, of counsel) for appl’t; D. M. Porter, for resp’t,

After both sides had concluded their introduction of evidence, and when the .cause was about to be submitted

p. 492
to the jury, it appeared that plaintiff had accepted the transfer to him of the judgment-debtor's store, and its contents, before the seizure thereof, and levy thereon, by the marshal to whom the execution was directed, without further consideration than his oral promise to discharge certain specific demands against the judgment-debtor, which aggregated five hundred dollars; and plaintiff’s recovery in this action is now assailed upon the ground that the promise to pay the demands was within the Statute of Frauds and void because not in writing, and that the undisputed evidence, therefore, shows that no consideration whatever was paid for the transfer; and hence that it was conclusively fraudulent as against creditors of the judgment-debtor.

, This contention, however, is without merit. Plaintiff’s promise was enforceable against him as an original one, made upon an independent consideration, beneficial to him, and devolving the obligation to pay the demands as«agreed. White v. Rintoul, 108 N. Y., 222 , 227; 13 St. Rep. 495 .

The evidence shows 'that the defendants actively participated, and directed the marshal in the seizure of and levy upon the store and contents. This constituted them trespassers equally with the marshal and subjected defendants to joint and several liability therefor. Dyett v. Hyman et al, 129 N. Y. 351 ; 41 St. Rep. 644 and upon a charge to which no exception was taken the learned trial judge fairly submitted the question of the bonafides of the transfer of the store, and of defendant’s participation in its'seizure, to the jury, whose determination upon a mere conflict of evidence we are not authorized to disturb. Besides, when the introduction of evidence for both sides was at an end defendants did not ask that the complaint be dismissed or a verdict be directed in their favor. Hence, they should now be precluded from questioning the sufficiency of the evidence for submission to the jury. Bennett v. Levi, 46 St. Rep. 754 . If it was error to deny defendants’ motion to dismiss the complaint when plaintiff rested, the evidence thereafter adduced by either party obviated it. Meyers v. Cohn, 4 Misc. R. 185; 53 St. Rep. 223 .

Plaintiff was asked on direct examination “Did you have any transaction with Mr. Lindahl about the 21st of July, 1892?” No exception was taken to the overruling of an objection by defendants’ counsel, and the objection itself was invalid because no ground therefor was stated Cruikshank v. Gordon, 118 N. Y. 178 , 186; 28 St. Rep. 784 . The motion to strike the answer out also fails to present any ground therefor, and was adressed to the discretion of the court because no valid objection to the question was made. Platner v. Platner, 78 N. Y., 90 , 101. It was competent for plaintiff to show payment of the demands agreed to be paid by him. The exception, therefore, to the question on plaintiff’s direct examination “What was done by you with reference to the debts to the other persons, other than yourself? ” is unavailable. The question did not call for the narration of a conversation with any person as contended. An objection to an answer of the witness, without a motion to strike the answer out, does not present error. Hence the exception based upon an objection to Lindahl’s testimony

p. 493
as to why he made the transfer to plaintiff is invalid. Platner v. Platner, supra. The objection to the question asked of Lindahl to state what goods the marshal took, and their value, specifies no ground. It was competent for plaintiff to show that the marshal entered his store with the intention of seizing it under the process directed to him, as well as that the demands which plaintiff had agreed to pay in consideration of the transfer of the store to him, were actual and subsisting. The objections, therefore, to the introduction of this evidence present no error.

The judgment and order should be affirmed with costs.

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