
    William C. Lesster, Appellant, v. Columbia Storage Warehouses, Respondent.
    First Department,
    February 19, 1909.
    Replevin — defense of ownership by third person — evidence insufficient to show fraud in procuring hill of sale — appeal — error preventing affirmance of part of judgment.
    Action of replevin against a warehouse to recover furniture stored. The defendant alleged and attempted to prove that the furniture was stored and owned by the divorced wife of the plaintiff. It was shown that at the time the husband conveyed certain property to his wife for her supjmrt and in consideration of a release of her dower and claims for alimony, she gave him a bill of sale of all the personal property in the house from which the furniture was removed for storage, with some minor exceptions. On all the evidence, held, that it was error to allow the jury to base a verdict for the defendant on a finding that the bill of sale had been obtained from the wife “ surreptitiously. ”
    So, too, it was error to admit evidence of conversations with the wife regarding the disposition' of the furniture prior to the execution of the bill of sale and before its validity was attacked.
    Although there was evidence to sustain a finding that the plaintiff had given part of the stored property to his wife, a judgment to that effect cannot be rendered where the jury was erroneously allowed to pass upon the validity of the bill of sale, for if that issue had not been submitted the verdict might have been different.
    Appeal by the plaintiff, William C. Lesster, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of June, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s Office on the 26th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John P. Elder, for the appellant.
    
      Charles Goldzier, for the respondent.
   McLaughlin, J.:

This is an action of replevin to recover certain household furniture and effects stored in a warehouse of the defendant. The complaint alleges two causes of action. The first for goods delivered to the defendant in July, 1902, and the second for goods delivered August 15, 1904, set forth -in schedules A and B annexed to the complaint.. The answer alleges that the goods in question were stored with the defendant by one Josephine E. Lesster, and on information and belief that she is the owner and entitled to the possession of the same. The trial of the action resulted in a verdict in favor of the defendant, and from the judgment entered thereon and an order denying a motion for a new trial, the plaintiff appeals.

It is not disputed that the goods in question were taken from the residence of the plaintiff on .Fifty-second street, New York city, and stored with the defendant by Josephine E. Lesster, a former wife of the plaintiff. It appeared that in 1902 she and the plaintiff had some discussion concerning a divorce, with the result that she some time thereafter went to Indiana for the purpose of securing a divorce from the courts of that State, which she finally did in June, 1904. During the progress of the action and for some time after the divorce was obtained, she continued to live in the Fifty-second street house with the plaintiff, though, according to her testimony, not as husband and wife. In the decree of divorce no provision was'made for alimony and on the 29th of July, 1904, they entered into an agreement of settlement in accordance with which the plaintiff conveyed to her certain parcels of land in the State of Indiana and assigned to her claims amounting to $879 for lands sold in. that State; gave her a mortgage of $10,000 on the Fifty-second street house, and paid her $3,094.63 in cash, in consideration of which she released him from all claims, including dower and alimony, and at the same time she executed a bill of sale to him of all the personal property in the Fifty-second .street house “except the piano, a screen and a ladies writing desk ” for a nominal consideration of $10. On August 4, 1904, she removed the piano and certain other goods from the house and stored them with the defendant, some of which are apparently included in the present action. These goods and those which she had previously stored were, according to her testimony, given to her by the plaintiff and were removed with his consent. So far as the action relates to them, the evidence is quite satisfactory and sufficient to support the verdict of the jury, but as to the goods stored on August 15, 1904, the situation is different.

It is not disputed that these goods were removed during the absence of the plaintiff, and that when he returned and found them gbne he told Mrs. Lesster she had no right to take them, and threatened her with arrest. He also immediately thereafter asserted his ownership of them to the defendant in whose possession he found them. Mrs. Lesster testified that when she executed the bill jf of sale on the twenty-ninth of July she also signed eighteen other instruments; that she did not read any of them and did not know she was signing a bill of sale o.f the furniture and effects in the. Fifty-second street house, but supposed, as she had been previously told by the plaintiff, that she was signing only releases of her dower right; that the plaintiff had told her she could have one-half of the furniture in the house, or whatever she wanted. On the other hand, Mr. Clinch, in whose office the papers were executed, and at whose direction they were drawn, testified that she read both the agreement of settlement and the bill of sale; that when she had read the latter instrument she said some of .the property in the house belonged to her; that he thereupon told her such property must be specified, and at her direction he inserted in the bill of sale, before execution, the words “ except the piano, a screen and a la'dies writing desk.” The testimony of Mr. Clinch was not contradicted. Although Mrs. Lesster was subsequently recalled as a witness, she made no attempt to contradict his testimony. It further appeared that in 1902, when plaintiff had conveyed most of his real estate to a corporation, she had signed the deeds in the same lawyer’s office, and also at that time executed a power of attorney to release her dower right in other real estate. And upon her direct examination she testified that when she told the plaintiff she had obtained her divorce “ he said the papers would be ready very soon, and I was to go down to the lawyer’s office and sign them — as to the furniture and the release of the dower.”

The bill of sale was under seal and acknowledged .and it could not be destroyed by stich vague and unsatisfactory evidence as that offered by the defendant, and the jury should have been so instructed. The trial judge, however, left it to the jury to decide Whether it was a bill of sale or not, and charged that if they found Mrs. Lesster’s signature to it had been obtained “ surreptitiously,” they might disregard it. This charge was not justified by the evidence, which falls far short of showing any fraud or misrepresentation which would warrant a finding that the instrument was invalid or that Mrs. Lesster’s signature to it had been obtained surreptitiously.” On the contrary, the great weight of evidence is that Mrs. Lesster executed the bill of sale with full knowledge of its contents. She also was permitted to testify, against plaintiff’s objection, as to conversations regarding the disposition of the furniture which occurred prior to July 29, 1904, the- day the bill of sale was executed, before any attempt even had been made to attack its Validity. This was also error.

It is frue she testified that after the execution of the bill of sale the plaintiff told her she might take what furniture she wished oiit of the house; that he said this on different occasions, and that she did on the fourth of August take part of the goods in question with his consent; that on the eleventh of August he told her he was going away and would not be back Until about the fifteenth of August, and that she could take what she wanted of the furniture, but he wanted her to take it'and be out of the house when he got back. Granting, therefore, the validity of the bill of sale, there is sufficient evidence to sustain a finding that the property^ which Mrs. Lesster did take had been given to her by the plaintiff, and if this question alone had been submitted to the jury, we would have no hesitation in affirming the judgment, but the judgment cannot now be sustained upon this ground, for the jury Was allowed to pass upon the validity of the bill of sale, and if this question had been withdrawn from tlieir consideration, we are unable to say that their verdict might not have been different.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event;

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  