Opinion
July Term, 1902.
Moses Feltenstein, for the appellants.
Abraham B. Schleimer, for the respondent.
One Sadie Tischler brought an action in the Municipal Court of the city of New York against Abraham Fishman to recover the purchase price of certain furniture alleged to have been sold by her and her assignors to him, and in the action a warrant of attachment was issued and a levy made by the marshal upon some of the furniture claimed to belong to Fishman, but which was at the time in possession of the defendant Isidore Goldman. Goldman claimed the property levied upon, and he thereupon, in order to keep possession of it, gave the bond provided for in section 2912 of the Code of Civil Procedure. Tischler had a judgment, which she thereafter assigned to the plaintiff, together with her claim against Goldman by virtue of the bond given by him. The bond provided as follows: "The condition of the above bounden obligation is that in an action upon this bond, to be commenced within three months thereafter, the claimant, the above bounden Isidore Goldman, will establish that he was the general owner of the property claimed at the time of the seizure, or if he fails to do so that he will pay the value thereof, with interest, then these presents to be void, otherwise to remain in full force and effect."
Within the three months specified, this plaintiff brought an action upon the bond against Goldman, to recover the amount specified therein. She had a verdict for the amount claimed, and from the judgment thereafter entered Goldman and the sureties upon the bond have appealed.
The ground upon which the writ of attachment was issued was that Fishman had given Goldman possession of the property levied on, with the intent and for the purpose of cheating and defrauding the plaintiff and other creditors. The appellants attack the judgment principally upon two grounds: (1) That the plaintiff failed to establish the value of the property levied on, and (2) that the court erred in instructing the jury that the burden of proof was upon the defendants to establish the ownership of the property and in refusing to instruct, at defendants' request, that the burden was upon the plaintiff to show that the sale was fraudulent.
First. The complaint charged that by the bond given the defendants obligated themselves, and thereby promised and agreed to pay "the value of the property levied upon at that time, to wit, $410.75." This allegation was not denied in the answer. It was, therefore, admitted, and there was no necessity for the plaintiff to offer any proof upon that subject.
Second. The court did not err in charging as he did, nor in refusing to instruct as requested by defendant. The burden of proof never shifts. ( Kay v. Metropolitan Street Railway Co., 163 N.Y. 447.) It may, upon a trial, assume such shape when the burden is upon a defendant that a plaintiff may be compelled to overcome the evidence which has been offered, but this does not shift the burden of proof. Here the condition of the bond is that if an action be brought within the time specified the claimant Goldman would establish that he was the owner of the property claimed at the time the levy was made. Under this condition of the bond, if the evidence were evenly balanced at the close of the trial, the plaintiff would be entitled to a verdict and the trial court in substance so held, and correctly instructed the jury upon the subject. But the evidence offered upon the trial as to the ownership of the property was not evenly balanced. On the contrary, its character was such as to amply justify, even if it be assumed that the burden of proof was upon the plaintiff, the jury in rendering a verdict in favor of the plaintiff. In this connection it appeared that Fishman owned a stock of furniture of quite considerable value, which was kept in two different stores, and that it was taken on Friday or Saturday night, between eleven and twelve o'clock, from the stores to a place kept by Wang, a brother-in-law of Goldman; that some of it was sold on the Sunday, and the balance on the Monday morning following; that Goldman was a journeyman, working for his brother-in-law for $1.50 per day. Goldman was examined upon the trial, and his testimony is quite unsatisfactory. He could not tell of what the stock consisted or whether he sold and disposed of the greater part of it on the Sunday morning following; he did, however, claim that he purchased the stock and paid therefor $700; that he gave $200 in cash and a check for $500, which he borrowed from Wang. Wang testified that he loaned Goldman $500 in cash, but did not let him have a check, and that Goldman's testimony in that respect was a mistake. Fishman was in court, but was not called by the defendant as a witness, and that he did not want him called is evidenced by the following questions and answers put to Goldman when he was testifying: "Q. Is Mr. Fishman in Court? A. I don't know. Q. Look around the room and see if Mr. Fishman is here. A. I don't need to. You can look around. By the Court: Q. Is Mr. Fishman in Court? A. I don't know. Q. Look around and see. A. Yes. Mr. Fishman is in Court." Nor did the defendant produce the inventory of the property which he claimed to have purchased, or call the persons who removed it, or give any satisfactory evidence whatever touching the value of the same. The defendant, therefore, not only failed to comply with the condition of the bond, by establishing that he was the owner of the property levied upon, for which reason the verdict was right, but had the burden been upon the plaintiff to establish that he was not the owner; that he did not buy it in good faith; that the transfer was made for the sole purpose of hindering, delaying and defrauding creditors, the evidence would have justified the jury in finding that such facts had been established.
The judgment and order appealed from are right and must be affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and LAUGHLIN, JJ., concurred.
Judgment and order affirmed, with costs.