Hangen v. Hachemeister

Headnote

Conversion—Evidence of value—Amount paid at auction sale, and amount paid shortly before wrongful taking, admissible—Damage to business, loss of profits, how shown—■ Commission improperly executed, objection to, waived by not moving to° suppress it before trial—Public administrator —Bight of to disregard fraudulent mortgage on property of estate, in the interest of simple contract creditors of estate.

Appeal from a, judgment entered against the defendant in favor of the plaintiff, and from an order denying defendant’s motion to set aside the verdict and for a new trial.

Action to recover damages for the conversion of certain personal property, and for the breaking up of the plaintiff’s business by the defendant. The defendant alleged that he took the property by virtue of a chattel mortgage which he held.

The Court at General Term said :—“ The only question litigated on the trial was whether or not the mortgage under which the defendant justified or attempted to justify the taking of the property, was a valid mortgage. The court charged that if this mortgage was good the defendant was not a trespasser in going into the plaintiff’s place and taking the property, and then, further charged that the only ground upon which they could find that the mortgage was void or fraudulent was, if there was an agreement between the mortgagor and the mortgagee that the mortgagor should have the right to sell part of the mortgaged property. To this charge there was no exception. The jury have determined that there was such an agreement, and we are bound by this determination, there being no exception that presents the question to this court. There were numerous exceptions taken on the trial which will be considered in the order in which they were taken. The plaintiff had testified that he had in his possession at the time of the taking other property than the mortgaged property. He was then asked what was the cost of this extra property to him ? To this the defendant objected as incompetent, and as furnishing no evidence of the actual value at the time the property is alleged to have been taken. The inference from the testimony is that this property was bought after the sale made by the public administrator, and some two weeks before the taking by the defendant. The defendant was also asked what he paid for the property at the auction held by the public administrator. This was objected to on the ground, among others, that what he paid for the property at that sale is no criterion of the actual value. This objection was overruled, and the defendant excepted. Evidence of what the property was sold for at ;public auction, and evidence of what the plaintiff gave for the property a short time before the taking, is proper upon the question of its value at the time of the taking (Hoffman v. Conner, 76 N. Y. 121 ). The defendant alleges that there was error in allowing the plaintiff to

testify as to the receipts from his business. The objection which is alleged to present this error is not really before the court, because it was taken after the answer to the question had been made. But the evidence was not irrelevant ; the plaintiff was entitled to recover damages for the breaking up of his business. One of the elements of this damage was the loss of the profits he might have made if the business had not been destroyed by the acts of the defendant; and one way, in fact, the only way, that the defendant has left to the plaintiff to show this loss, is to show what the profits were for a corresponding period (Schile v. Brokhahne, 80 N. Y. 614 ). The defendant also alleges that it was error to admit a certain commission in evidence on the ground that the commission was improperly executed. The defendant, if the commission was improperly executed, should have moved to suppress it before the trial. The defendant also alleges that it was error to allow the plaintiff to prove that certain creditors had filed claims with the public administrator against the estate. Chapter 314, of the Laws of 1858, authorize an assignee or other trustee of an estate of an insolvent, for the benefit of creditors and others interested, to disaffirm and treat as void all transfers in fraud of their rights, and to maintain all necessary actions for that purpose. And an action by such a trustee to aqnul a fraudulent transfer, and to recover the property or its avails, may be made for the benefit of simple contract creditors (Southard v. Benner, 12 N. Y. 424 ). Therefore, it was necessary to show that there were creditors of the mortgagor, and this evidence was not irrelevant for that purpose. There were a number of other alleged errors urged on the argument at general term, but most of them were not presented by any exception taken at the trial. The only exception to the charge was cured by the charge of the court made subsequent to the taking of that exception.”