Opinion
February, 1901.
Herbert J. Hindes, for appellant.
John Palmieri, for respondent.
The action was an alleged conversion by the defendant in seizing and disposing of plaintiff's property under an execution against a third party. The evidence, to our minds, is irresistible that the property of the defendant in the execution was not taken in satisfaction of the judgment. There are, as it appears, two stores upon the premises No. 311 West Forty-fifth street, in the city of New York, with a hallway between them. The store on one side of this hallway was a dry goods store, owned and carried on by the mother of the plaintiff, and the other a grocery store, carried on by the plaintiff's stepfather. The transactions which led up to the judgment, on which the execution was issued, were wholly within the grocery store. On the 5th day of June, 1899, the plaintiff bought the dry goods store from her mother and paid for it in cash, the consideration being $500, which sum the plaintiff drew out of a bank, from an account kept in her own name. She received a bill of sale of the dry goods store from her mother, and says she immediately caused the name in front of the store to be changed to her own name, and thereafter she conducted the business as her own. The levy under the execution was upon the third of July following.
The case, upon all the evidence, was fairly submitted to the jury, and they appear to have determined all of the issues in the plaintiff's favor. The execution called for the collection of only forty dollars and thirty-five cents, and it is inconceivable that the defendant should have thought it necessary to carry away a stock of goods amounting to nearly $600, and to have broken up the plaintiff's business, without first having set upon foot an inquiry that would have led him to a knowledge of the real situation. The charge was eminently fair to the defendant, and we are not inclined to interfere with the determination reached by the jury.
Judgment and order appealed from, therefore, affirmed, with costs.
FITZSIMONS, Ch. J., and O'DWYER, J., concur.
Judgment and order affirmed, with costs.