
    NO. 8758
    COURT OF APPEAL PARISH OF ORLEANS
    MOISE LEVY vs. DANUEL LEVY.
    
      
    
   Dinkelsplel; ,J

Plaintiff alleges that the defendant is indebted unto him in the sum of $100.00; that he is the holder and -owner for íalue and before maturity of four certain promisory notes, each for the sum of $25.00, signed by the defendant, who had acknowledged his indebtedness and promised payment. Wherefore he prays for judgment.

The defendant, admitting his signature pleads that he is in no way indebted to plaintiff in any sum whatbsoever; that the notes 3ued on are the property of the estate of Alexander H. Levy, and that the plaintiff is the holder of said notes in bad faith and is without interest in and to the same; that said notes v/ere aoquired by Alexander H. Levy during his lifetime, and he, the said Alexander, died and his succession has been administered by his widow, who claims the proceeds of said notes.

The widow of Alexander Levy files a petition of intervention and third opposition, showing that the succession of her husband ws.s being administered by her in the Civil District Court; that her husband died on the 17th of March, 1923, and he was the true end lawful owner for vs.lue of the notes in question; that the plaintiff nas instituted a suit against the defendant to recover payment of said notes, but she avers that same were the property Of her deceased husband and now belong to the succession; the the sold deoeased husband acquired said notes from plaintiff for a. vulueable consideration end that plaintiff is without right, title or interest in ?nd to said notes, and that the notes are the sole property of her late husband.

To this petition of intervention, plaintiff filed his answer, admitting the dea.th of his brother, Alexander H. Levy, and denying that the deceased, now represented by the administrs.trix, wife, is the owner of said notes, averring that he loaned the money represented by the notes to defendant and the intervention filed by the widow is a mere subter-defeating fuge for the purpose ojyjfee&ttfetfig payment of said notes.

le have thus minutely detailed.a substantial portion of the pleadings in this easel She testimony in this record is conflicting, but in the main it is proven by the testimony of plaintiff himself, in being questioned in what way he got possession of the notes in question he answered to the question:

Q. You took these notes out of Alexander H. Levy's desk did you not? A. Yes sir, Judge, I took them, he told me one mornr ing he was sick about three weeks and he told we 'to go s,nd get the notes in his desk; I had the keys always and I had my key for the door and desk and he e.sked me if I got the notes and I said yes and he said hold them, you need the money.

According to this witness's testimony this conversation took place in the bedroom of the deceased; no one else was present. He further testifies that the dotes were his property and he gave them to his brother, Alexander, to keep for him; that he had no safe place to keep them.

On oross examination he goes on to relate: "About a month before he died he was unable to go to his office, he was siok and he said, Moise, you had better go up and get your notes as taae porters are going in the office all the time and you do not know what they are doing."

He testifies in this same connection that he went about 6:45 in the morning to his brother's office in the Godchaux Building end he got these- notes out of the desk Of his brother; he further, testifies that he did not take anything except She notes end he paid no attention to any cancelled checks thet were in the desk.

Mrs. Levy, widow, knew that her husband hsd acquired these notes because he had bold her 30, she failed to put then: correctly on the inventory and in explaining that feet says it was an oversight; the defendant himself when on the stand swears that he w?3 well acquainted with the handwriting of his l&te brother, Alexander, and the stub book of his check, doted March 28nd, 5-931, showed that the deceased had paid plaintiff for these notes and he swears that the notes are the property of the succession of his brother.

The widow testifies thet the stub in her husband's checkbook was me.de in his handwriting, and that on the 23nd, of Ms.rch, 1923, it showed paid to JioisS Levy for account of Daniel Levy the notes in question; all of the notes in her husband's possession, save and except the ones in question, were found in the deceased's desk.

Another witness, a Mias Casey, who was at the office of the decessed every day, went to aid in taking the inventory. Q. Did you see anyone taking anything out of the desk! A. Hr. Dan Levy who talcing down all the numbers while Mr. Daniel Bevy Jr., called them off; I followed them up end Mr. Sydney Levy was taking all the papers out of the drawers, like cancelled checks and pamphlets, things belonging to the company; I could not s.ee what they ware.

She further testified she saw him take out of the drawers, cancelled checks but she could not identify who signed these checks, but says th'-.t most of them hod the deceased's -ig-nnture; the desk belonged to rue deceased, and was locked; she b>w Sydney Levy assorting papers and checks but she could not identify the checks in .question. This testimony is virtually oerreborrated by Daniel Lgy.y Jr.

Jan. 25th, 1923.

We have thus detailed substantially the main portions of the evidence in this case, which goes to prove that the deceased ,h?.d bought these notes during his lifetime from the plaintiff in this oase and he left them in hia desk to-gKhxasixsdtih gether with other pa-pers ana after his doíth, the desk was found in a very disordered condition but most of tfcKjajsKXsjowta the papers, checks. _.c. etc. were there, save and except the particular oheck paid to the plaintiff in this cese for these notes.

The testimony of disinterested witnesses clearly ocnfirms these fects.

The Judge of the lower Court saw and heard the witnesses and was m a better position to judge of their veracity than we are; he decided this cs.se in favor of the intervenor and we 'concur in this judgment.

For the reasons assigned, it is ordered, adjudged end decreed that the judgment of the Court a quo be and the same is hereby affirmed, costs of both Courts to be paid by plaintiff.

-Judgment affirmed.  