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Menken v. Baker

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1899
40 App. Div. 609 (N.Y. App. Div. 1899)

Opinion

April Term, 1899.


Judgment and order affirmed, with costs.


The plaintiff sues for damages occasioned by the wrongful seizure and detention of his property by the defendant, as sheriff of the county of Queens, who justified under an execution issued on a judgment in favor of William M. Stout, Frederick G. Spencer and William V. Stout, and against William Von Elm. The judgment was rendered on May 26, 1898, and the execution was issued on June second. It was levied on a stock of goods in a grocery store at Hempstead, which for several years had been occupied by Von Elm. The plaintiff claimed that the property was sold to him by Von Elm for the sum of $900 paid in cash on April nineteenth, when a bill of sale was delivered to him. There was evidence tending to show the good faith of the sale and the payment of the consideration in cash, and that on the day named the plaintiff took possession, purchased and sold goods in his own name, employed a former clerk and remained at the store for two or three weeks, personally conducting the business, when, being sick, he went to his home at Union Course, some fifteen miles distant, and that he then employed Von Elm on a salary to manage the store. The old sign of Von Elm remained over the door, and a wagon formerly used by Von Elm and which had his name upon it was used in the business. The old billheads of Von Elm were used with his name obliterated and the name of the plaintiff substituted, and on May first the plaintiff renewed or took a new lease of the store in his own name. This condition of affairs continued until the sheriff made his levy. It is evident that on these facts a question arose whether the sale was fraudulent and void as against the creditors of Von Elm. The defendant moved to dismiss the complaint on the ground that there was no actual and continued possession of the property by the plaintiff, and asked the direction of a verdict in his favor at the close of the plaintiff's evidence. The motion for the direction of a verdict was renewed at the close of the entire evidence and after the court had charged the jury. The contention of the defendant's counsel was that it appeared by undisputed evidence that there was not a continued change of possession, and that the burden was on the plaintiff to show good faith in making the sale. He seems to have lost sight of the language of the statute which makes a sale of personal property not followed by actual and continued change of possession only presumptively fraudulent as against creditors, and conclusively so unless it be made to appear that it was made in good faith and without intent to defraud creditors. There was sufficient evidence to require the submission of the question to the jury and it was fairly submitted in the charge, in which, after reviewing the evidence and stating the contention of each party, the court said: "If you find that this was a sham transaction, that there was no change of possession and no continued change of possession, then your verdict will be for the defendant." We cannot interfere with the verdict. The exceptions to the charge only relate to the questions already considered. The judgment and order must be affirmed. All concurred.


Summaries of

Menken v. Baker

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1899
40 App. Div. 609 (N.Y. App. Div. 1899)
Case details for

Menken v. Baker

Case Details

Full title:Charles Menken, Respondent, v. William C. Baker, as Sheriff of the County…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1899

Citations

40 App. Div. 609 (N.Y. App. Div. 1899)