
    Meyer Lipschitz, Respondent, v. Simon Halperin et al., Appellants. Abraham Levine, Respondent, v. Simon Halperin et al., Appellants.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Execution against property — Sale — Property or title acquired by purchaser— Bona fide purchaser.
    Fraudulent conveyance — Remedies of creditors and practice relating to attacks upon conveyances — Evidence — Weight and sufficiency of evidence.
    Evidence — Opinion evidence — Non-expert evidence — Distinction between matters of fact and conclusions of law — Ownership.
    The title of a purchaser of goods under an execution sale at public auction, he being the highest bidder and paying an adequate price, cannot be affected because the judgment was collusive between the parties to the action and given to hinder, cheat and defraud the creditors of the judgment debtor.
    Where such property is again attached as the property of said judgment debtor and, upon said purchaser giving a bond under section 85 of the Municipal Court Act, is delivered to him by the marshal; and where, in an action brought upon the bond, it appears that, after the auction sale, the goods were placed in the possession of the judgment debtor with permission to sell them; that he was present when the attachment was levied; that his father-in-law’s name was on the door of the room where the goods were when seized; that the name of the purchaser at the execution sale, who was the brother-in-law of the judgment debtor, was not on the door, and that said purchaser was not engaged in the business for which the goods levied upon were used, such facts have no bearing upon the bona flies of the purchaser at the execution sale and are not evidence of a subsequent transfer of the property from the purchaser to the judgment debtor.
    It was incumbent upon the plaintiff, in the action upon the bond, to show that the purchaser had divested himself of his title by evidence of facts or circumstances from which it might fairly be inferred that such, transfer was made.
    The ownership of property is always a question of fact; and it was error to refuse to permit the purchaser at the execution sale to testify to whom the property belonged at the time of the subsequent levy.
    
      Appeals by the defendants from judgments of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, in favor of the plaintiffs, entered upon the verdict of a jury.
    Emanuel Klein, for appellants.
    Joseph Wilkenfeld, for respondents.
   Hendrick, J.

These actions were tried together, and the plaintiffs recovered judgments from which the defendants appeal. The following facts are undisputed. One Hath an Halperin, being indebted to the plaintiffs herein for goods sold and delivered to him, actions were commenced by them in the Municipal Court, warrants of attachment were issued and, on or about April 12, 1906, levies were made upon property claimed by the plaintiffs to be the property of Halperin. One Berman also claimed ownership of said property and, proceeding under the authority conferred by section 85 of the Municipal Court Act, gave bonds;, and the property was delivered to him by the marshal. The condition of bonds given in such cases is 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.” These actions were brought against the defendants, the obligors in the bond. Hpon the trial the defendants proved that, upon March 12, 1906, in a judgment recovered by one Phillips against said Hathan Halperin, an execution xvas issued and a levy made thereunder upon the same property levied upon in the attachment suit and That, at a subsequent sale at public auction, duly advertised, at which numerous bidders were present, said Berman bid off the property for the sum of $300, which sum he paid to the marshal making the sale and took his receipt therefor. It was also shown that, prior to the sale, Berman had refused to loan Halperin money xvith which to pay the Phillips judgment and thus prevent the sale under execution. This sale took place on or about March 18, 1906, as .appears by the record, being about three weeks prior to the levy made under the plaintiffs’ attachments, If we should assume, of which there is not the slightest evidence, that the Phillips judgment was collusive between Phillips and Halperin and given with the intent to hinder, cheat and defraud creditors, the evidence is conclusive that Berman obtained title to the property in question by virtue of his purchase as aforesaid. A purchaser of goods under execution sale at public auction, he being the highest bidder and paying an adequate price, is in an entirely different position from that of a purchaser at private sale from an insolvent vendee knowing of his insolvent condition. Unless, therefore, it was shown'that Berman had in some manner been divested of, and Halperin reinvested with, title to the property between the date of the execution sale and the time of its seizure under the attachments, the defendants should have had a judgment. As to this there was not the slightest direct evidence. The plaintiffs offered testimony to the effect that the goods were removed'from Halperin’s place of business to Prince street after the auction sale; that, at the time the levy under the attachments was made, Halperin was present; that the name of Weiser, the father-in-law of Halperin, was on the door oE the room where the goods were when seized; that Berman’s name was not on the door; that Berman and Halperin were brothers-in-law; that Halperin paid wages to certain employees; that Berman was engaged in the rag business, and not in the business of manufacturing purses which the goods levied upon were used for; that Halperin had these goods in his possession, and was engaged in selling them at the time of the levy; that Bennan did not go into the leather business and that Halperin’s two brothers were the obligors in the bond; and these circumstances are evidently urged as showing a fraudulent transfer from Berman to Halperin of the property in question, after the purchase by Berman at, the execution sale. Such facts clearly have no bearing upon the bona fieles of Berman’s purchase at the auction sale, and we do not think that they are any evidence of á transfer of the property from Berman' to Halperin after such sale. As we have seen, Berman is shown to have been a purchaser in good faith and for value at the auction sale. All of the acts shown to have been done regarding the property so purchased by him after such purchase are equally consistent with ownership in him as they are to a transfer of title by him. Berman had a perfect right to place the goods in Halperin’s possession and to permit him to sell the same, and such acts are not evidence' of a transfer of title to Halperin under the circumstances of this case. The plaintiffs do not stand in the position of bona fide purchasers of property from a fradulent vendee to whom a vendor has passed the title and possession of property, as, in such a case, if the vendor intended to part with the title and has delivered the possession of the property to a fraudulent vendee, thus enabling him to perpetrate a fraud upon an innocent third person, the original vendor must be the loser. Here the plaintiffs attempted to and did seize property by virtue of an attachment; and], when the claimant showed himself to be the owner, it was incumbent upon the plaintiffs to show that he had divested himself of his title, and such evidence must be facts or circumstances from which it can fairly be inferred that such transfer was made. Upon this pivotal issue the judgment is clearly against the weight of evidence. As there must be a new trial, it may be well to say that we do not regard the points made by the appellants, that the action was not begun within three months, or that his refusal of the right of last sximming up to the jury was error, as of any weight. Reversible error, however, was committed in excluding the following testimony offered on the part of the defendants. Berman was asked “To whom did that property in Prince kStreet belong, on or about the 12th of April, 1906 (that being the time the marshal came to make the levy) ? ” The plaintiffs’ counsel objected to this as calling for the conclusion of the witness and incompetent. The court said: “You mean the property that is in question ? ” Defendants’ counsel: “Yes, the property in question, the property the marshal took that day up there on the writ of attachment.” The court: “ I shall sustain it as a conclusion. It is shown he purchased it, is it not, he purchased and paid $300 for it?”- Defendants’ counsel: “Hot only this, I want to show he had other property there in addition to the property”The court: “ That you might go into but that property you have shown he purchased and paid $300 for. How, the legal conclusion would be that it naturally belonged to him, but it is not for him to say it. I shall sustain the objection to that.” The ownership of property is always a question of fact, and the testimony called for was competent. Pichler v. Reese, 171 N. Y. 577; DeWolf v. Williams, 69 id. 621; Nicolay v. Unger, 80 id. 54; Sweet v. Tuttle, 14 id. 465; Davis v. Peck, 54 Barb. 425.

Gildebsleeve and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  