
    Max Globe, Respondent, v. Adolph Rauch et al., Appellants.
    (Supreme Court, Appellate Term,
    
    July, 1897.)
    1. Sal'es — Change of possession.
    Where a vendor remains, after a sale, continuously about and in charge of his store and the apparent conditions of occupation are the same, the element of a change Of manual possession, a usual constituent of a bona fide sale, is absent.
    2. District Courts of Hew York — Jurisdiction — Waiver of amount in excess.
    A person suing sureties, in a District Court of the city of New York, upon a bond given by third party claimants in- an attachment proceeding, under Code, § 2912, may jwaive a recovery in excess of the jurisdiction of the court and recover up to that amount. '
    Appeal from judgment rendered’ by the justice, of the First Judicial District Court in favor of the plaintiff.
    Action upon bond given by third party claimants to plaintiff in attachment, under section 2912 of the Code of Civil Procedure.
    Charles I. Schampain, for appellants.
    Louis Levy, for respondent.
   Bischoff, J.

In an action brought by this plaintiff against one-Jacob Schlacht-for goods sold and delivered, an attachment was issued against the stock contained in the latter’s grocery store, and a levy was made December 8, 1896,

Claiming ownership of this stcck, one Augusta Greenspan and one Morris Weinstein obtained possession of the property and its release from the attachment, by furnishing a bond as provided for by section 2912 of the Code if Civil Procedure, which section reads as follows:

“ If a person, not a party to the action, claims any property attached * * * he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute and file "with the justice, a bond to the plaintiff "x" * * in a penalty at least twice the value of the property claimed; and conditioned that, in an action upon the bond, to be commenced within three months thereafter, the claimant will establish that he was the general owner of the property claimed, at the time of the' seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The constable must thereupon deliver the property claimed to the claimant.”

The action against Schlacht proceeded to judgment for the plaintiff and this action was thereupon brought, in proper season, against the sureties upon the bond, these defendants. Both by the terms of the statute and by the wording of the bond in suit, the burden was upon the defendants to prove that Greenspan and iWeinstein were the owners of the goods attached, at the date of the levy and, after hearing a considerable amount of testimony upon the subject, the justice has decided the issue in favor of the plaintiff.

Tt appears to us that the record fully authorized a determination that the defendants had not satisfactorily sustained the burden of proof in this regard, and the judgment is unassailable.

It wás shown that for some time prior to the 5th of December, 1896, Schlacht was openly the owner of the stock contained in the store conducted by him at Ho. 204 Bivington street, but during the period of three days which elapsed between that date and the date of the levy of the attachment, December 8th, several transactions took place touching this stock, which transactions, with the circumstances surrounding them, furnished the matter for this litigation.

On the 5th of December Schlacht made a bill of sale of all the stock and fixtures in the store to one Mysel, for the stated consideration of $888, and it was testified by Mysel that he had actually paid $388 and had canceled two promissory notes of Schlacht’s,'aggregating $500, for the balance.

Mysel on the same day transferred the chattels in question to Mary Schlacht, a sister of Jacob Schlacht, in consideration of $1,000, by a bill of sale which acknowledged the receipt of $112 and called for payment of the balance of $888 in monthly installments of $60, for the default inpayment of any one of which installments title was to revert to the seller aid the bill of sale to. become null and void. ■'

On December 7th, Mary Schlacht made a bill of sale to Greenspan & Weinstein, the consideration, as ■ iset forth, being $800, actually paid at the time of delivery, and the two last-named persons testified that they .had made the payment in cash.

From certain affirmative evidence,'from the nature of these transactions and from matter brought out upon cross-examination of the defendant’s witnesses, it was well within the province of the justice - to find .that Greenspan & Weinstein’s possession of these goods, at the'date of the levy, was not obtained through a bona fide transfer, but only in the course of an endeavor by Schlacht to defraud his creditors:

Schlacht appeared to be continuously about the store after .he. had ostensibly disposed of his right, title and interest in it,, and the element of change of manual possession, a constituent generally of a bona fide sale, was absent.

Weinstein testified that Schlacht “ worked there,” and Greenspan, the husband and general'agent [of Augusta Greenspan, testified that he hired him, but, in view of the circumstances, the fact of his. presence was suspicious and these witnesses gave interested testimony, which it was for. the justice to credit or not, in his discretion.

From all the evidence the justice could'well have drawn an inference that Schlacht remained in possession after these purported transfers of the goods, and so, unless the proof showed that Greén-span.& Weinstein really actjsdin good faith in the matter^ the transaction was presumptively fraudulent and void . as against creditors, and thus could not suffice as a basisfor the claim of ownership as' made.

As to the transfer by Schk.cht to Mysel .there was evidence of an admission made by Schlacht to one Kline that he had thus disposed of the property to escape, his creditors, or,- ás he expressed it, to do you all,” and, also, it was testified that Mary Schlacht had admitted that she had paid nothing to- Mysel upon the assignment of the property to her.

The fact that Mary Schlacht purchased the goods from Mysel at an advance of $112 upon the price paid by the latter to Schlacht on the same day, according kó the purport of these bills of sale, certainly seemed improbable, the relations of this brother and sister being apparently cordial and there being no necessity for-the sister’s losing this sum to a stranger’s profit; Then,' again, it was not clearly made to appear why Mary Schlacht desired to make the purchase since she had not been at the store for six weeks previous to the sale and had no knowledge of the extent of the business, nor of the value of the stock.

As to the connection of Greenspan & Weinstein, with the matter, the fact that they were purchasers in good faith was far from apparent.

It is said that they actually paid Mary Schlacht $800 as consideration for the transfer of the goods to them by her, yet they had seen her bill of sale from Mysel and so must have, known that the title which! she had to offer was dependent upon her payment to Mysel of. $888, in monthly installments, and against her default in this they were absolutely unprotected: That the payment of $800 was really made, under these circumstances, is well nigh incredible.

The testimony of Weinstein arid of Aaron Greenspan, the party who appeared throughout for Augusta Greenspan, was, moreover, -unsatisfactory, and the answers given upon cross-examination were in many instances evasive, or at least not calculated to impress the justice favorably.

We conclude that there was no impropriety in the finding that the claim of ownership was not supported by the preponderance of the evidence. ;

■ Objection was made - to the jurisdiction of the court upon the ground that the plaintiff was not a resident of the judicial district, it being shown and apparently conceded that the defendants were not such residents, but there* is no force in the contention since the justice was certainly authorized to accept the plaintiff’s testimony that he wás a resident.

To contradict the plaintiff upon this point the defendants called a witness who, during recess of the court, had inquired at the address given by the plaintiff as that of his residence and had been told by some person upon the premises that the plaintiff did not live there.

Testimony to this effect when offered was excluded and the' defendants took an exception, but clearly the exclusion was proper since the evidence was merely hearsay.

Further objection to the jurisdiction was based upon the fact that the judgment obtained in the action against Schlacht, representing the full amount of the defendants’ liability upon their bond to the plaintiff, was excessive of $250, but it was competent to the plaintiff to waive the excess, and, since he claimed no more than $250, the court had jurisdiction. Code Civ. Pro., § 3215, subd. 1.

Exception was taken to the exclusion of certain receipted bills, rendered by the plaintiff to Schlacht and. said by the latter to cover all the goods which the plaintiff h id ever delivered to him.

" The question of Schlacht’s indebtedness to the plaintiff, however, was concluded by the judgment. upon which this' action was founded and the matter was irrelevant t> the issue before the court, which was solely as to the ownership of the goods released from attachment upon the giving of. the’ bond in suit..

Certain other exceptions were taken to rulings upon evidence hut they are not found to merit discussion.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  