Opinion
December 30, 1910.
Benjamin Frindel, for the appellants.
Daniel T. O'Brien, for the respondent.
The plaintiff has recovered a judgment for the sum of $175 as the value of a wall-case, or show-case, and seventy yards of cloth, which he alleges the defendants converted. The plaintiff's title to the property is by virtue of a chattel mortgage in the sum of $1,000, executed by Yetta Fleischner to him, covering the articles in question and other goods which were in her husband's store. The defendants recovered a judgment against the husband, and the articles were levied upon by virtue of an execution and were sold at public sale for the sum of $38.35.
The good faith of the mortgage was assailed upon the trial, and the plaintiff, when asked about the consideration for it, testified as follows: "Q. Did you pay any money towards the mortgage? A. I don't remember. Q. Was it two hundred dollars? A. I don't remember. Q. Was it one hundred dollars? A. I don't remember. Q. Was it fifty dollars? A. I don't remember. Q. Was it ten dollars? A. I don't remember. Q. Was it anything at all? A. I don't remember."
On the question of the value of the property, aside from the price brought at the public sale, the only evidence offered was that of a witness on behalf of the plaintiff, who testified that the cloth was of the value of sixty-six dollars and nine cents, but whose testimony was at once struck out by the court as without foundation.
The judgment being unsupported by proof either of the good faith of the claim or the value of the articles alleged to have been converted is without legal basis, and must be reversed.
WOODWARD, JENKS, RICH and CARR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.