White v. Schreiber — 67 N.Y. St. Rep. 169

Majority

p. 169

J. Martin White et al., Resp’ts, v. John C. Schreiber, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 4, 1895.)

Headnote

Evidence — Competency.

The testimony of a witness, who has known a person and been associated with him in business for a number of years, as to his knowledge of the latter’s having any property, is competent upon the question of his financial standing.

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

The áction is brought to recover the possession of a quantity of hop sacking. It is alleged by the plaintiffs that on the 20th August, 1892, they were the owners of the property, and entitled to its possession, and that on that day the defendant wrongfully took the same, and detains it, although demanded by the plaintiffs ; that on the 23d March, 1892, and the 19th April, 1892, the-plaintiffs sold and delivered the property on credit to the Sheridan Scotch-Cap Company, a domestic corporation doing business-at Utica ; that said company was then to its own knowledge insolvent, but concealed that fact, and obtained the goods, with the preconceived design and intent at the time not to pay for the-same, and with the intent to cheat and defraud the plaintiffs; that the sale was fraudulent and void, and no title to the goods passed ; that on or about the 20th August, 1892, the defendant, as sheriff of Oneida county, levied on the same under an execution against the company in favor of one Shaughnessy. The-answer was a general denial and a justification under the execution. The verdict awarded the possession to the plaintiffs, and fixed the value at $881.

W. E. Lewis, for app’lt; Jones & Townsend, for resp’ts.

No point is made by the on the facts. It is, however, claimed that the court erred in three of its rulings on the admission of evidence.

1. James P. Sheridan, who was the president of the company,, and its business manager, was called as a witness by the plaintiffs, and, among other things, he was asked with reference to the pecuniary responsibility of one Monokton, who was the treasurer of the company, and a director, the following question: “Did you know of his having any property outside of his interest in this stock in 1891 ?” This was objected to “as incompetent and immaterial,” and objection overruled, and exception taken, and the answer was: “Mo, sir; I did not. I have not known of his having any property besides his interest in this stock in the past three years.” The suggestion on the part of the defendant is that, conceding that it was proper for the plaintiffs to show the financial responsibility of Mr. Monckton, the method of doing it permitted by the court was improper, and that the negative evidence of Sheridan was not admissible. It appeared that Sheridan had known

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Monckton for ten or twelve years, apd had been associated with him in business for several years. The objection was, we think, properly overruled. The weight of the evidence was for the jury. The circumstances as to Monckton’s responsibility the plaintiffs had a right to show. No report had been filed by the company in January, 1892, so that the directors were personally liable to a certain extent..

2. One W. T. Noyes was called as a witness by the plaintiffs, and testified that he was the superintendent in Utica of the Bradstreet Company, an agency which was organized for the purpose of reporting the financial standing of business firms and corporations and others doing a mercantile business, and had offices in all the principal cities in the United States; that he knew the plaintiffs’ firm, and knew Sheridan, and had a conversation with him on the 19th February, 1892, at the office of the Sheridan Scotch-Cap •Company. The question was then asked : “Will you state the conversion?” This was objected to “¿is incompetent, immaterial, and irrelevant, and there is no foundation laid for it.” The court replied, “I think it is competent as the declaration of an offier in •charge of the company’s business,” and the objection was overruled, and .exception taken. The witness answered:

“I called on Mr. Sheridan, and I first informed him that I had not found any certificate showing their condition filed with the county clerk. He informed me that they had not filed any. Then I stated: ‘If that is the case, your company is.in better condition now than before, and that practically 'makes your directors liable for all the debts of the concern.’ And he says: ‘Yes, I understand so.’ Then I says: ‘If that is the casé, I will change the rating from what it was before, — a capital of $5,200.00, — and give you a Uglier credit rating.’ And I says : ‘If there has been no change in the directors or officers of the company, of course they would be personally held liable for the debts.’ He said there had been no change. So, on the information received from Mr. Sheridan, I rewrote the report. I asked him if Mr. Callahan was still a director. He said-that he was ;■ that there had been no change in the directors. I always j udged Mr; Callahan to be a man of financial responsibility.”

The following then occurred:

“Q. Did this information go into your book which is issued? (Objected to that witness should not be permitted to state what when into the book. Objection overruled. Exception taken by defendant). A. The rating on which this report is based went into the book. Counsel for Defendant: I ask to write out what this witness has testified to, and the whole of it, — all that he states as having occurred between him and Mr. Sheridan. The Court: That I refuse. (Exception taken by defendant.) ”

It is claimed that the court erred in admitting the testimony of Noyes, and that the motion to strike out should have been granted. The argument is that it did not appear that any creditor or any person ever saw or received any information from the rating put into the report. This objection was not taken, and, if it had been, it may be that it might have been obviated. The company was

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evidently getting a good deal of credit about the time. Besides, it does not seem to be entirely settled that enough was not shown to make it proper as a contemporaneous act reflecting on the question of intent. The statement that Mr. Callahan was still a director was not true. It already appeared that he was the only responsible man connected with the business, and Mr. Sheridan, for the company, was willing a rating should be based on his responsibility, and it was so entered. In Hersey v. Benedict, 15 Hun, 282 , 287, Judge Talcott says:

“The same principle upon which the evidence of cotemporaneous frauds is admitted, as bearing on the intent of the party in committing the fraud principally in question, would lead to the admission of evidence of an attempt to commit a similar fraud, at about the same time, by similar means, whether successful or not.”

We are not satisfied that there was any such error in admitting the evidence, or in denying the motion to strike out, as would properly call for a reversal.

3. After it was proved on the part of defendant that he acted under an execution against the company, and a valid levy was conceded the plaintiffs called the defendant as a witness, and asked the question, “Were you indemnified in this case?” An objection to this as “incompetent, irrelevant, and immaterial” was overruled, and exception taken. This ruling is claimed to be erroneous. This, strictly speaking, may be so, but it is a little difficult to see how the defendant was harmed. The real controversy was between the plaintiffs and the judgment creditor whom the defendant represented, and the defendant had no personal interest in the matter. Without the evidence on the subject, the jury would very likely have inferred that the sheriff was in fact indemnified.

We are of the opinion that no sufficient reason for reversal appears, and that the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.