Woodbridge v. Nelson

Headnote

Oomersion of jyi'operty — what evidence sufficient to establish — order of arrest for.

Appeal from an order made at tbe Special Term, setting aside an order of arrest.

Tbe court, at General Term, said: “ Tbe facts so far as they are material for tbe discussion of tbe present appeal are few. On tbe 27th of January, 1877, tbe plaintiff owned certain household furniture wbicb she bad in her possession in tbe bouse, 24 Nassau street, Brooklyn. On that day she sold tbe furniture to defendant, and took in part payment for the same a note of $250, accompanied by a chattel mortgage. The note was payable at six months, and tbe mortgage was filed in tbe proper office. It was. designed and intended that tbe furniture should remain in tbe bouse 24 Nassau street, until after tbe note was paid. The defendant without plaintiff’s knowledge, moved three times before tbe note was due. Tbe plaintiff, in tbe last days of July, 1877, found him occupying rooms in Hicks street; be bad not taken tbe furniture there. Tbe plaintiff called there on the 30th of July, 1877, tbe last day of grace upon tbe note,' and was told by défendant’s wife that be was in Boston. Defendant’s wife also told plaintiff at tbis interview that

she did not know where the furniture was. Plaintiff called twice at the same place in Hicks street, on the 4th. of August, 1877. Neither time was she able to find defendant. On one of these occasions defendant’s wife told her that her husband had gone to Boston and would return the tenth or elevénth of August; that she did not know where the furniture was. After being pressed by plaintiff, she said it was stored in Myrtle avenue, but she didn’t know where. On the tenth of August plaintiff again called at Hicks street and defendant and his wife had both moved away the day before. Plaintiff is unable to find her property or any property of defendant and is unable to find defendant, nor that he has any known residence. By the default in the payment of the mortgage the title became absolute • in plaintiff. No demand is necessary if the property has been converted by defendant. The .only question upon this appeal is, whether these facts would entitle the plaintiff to go to a jury upon the question of conversion if the facts remain uncontradicted upon the trial. I think they would. I think the jury would, without hesitation, find a conversion ■ in fact.

The order should be reversed with costs, and the motion denied with costs.”