
    Anna T. Brady, Resp’t, v. G. Waldo Smith et al., App’lts.
    
      (New York City Court, General Term,
    
    
      Filed June 20, 1894.)
    
    Appeal—Conversion—Fraud.
    An appeal from a judgment in favor of plaintiff in an action for conversion, will be affirmed where the testimony discloses a fraud by defendants in procuring a chattel mortgage from plaintiff and selling her property thereunder, perpetrated through the instrumentality of a third person, with the knowledge and approval, if not with the active participation, of defendants.
    Appeal from judgment entered on verdict of a jury and from an order denying a motion for a new trial.
    
      Uriah W. Tompkins, for app’lts; Burr & Be Lacy, for resp’t
   Coulah, J.

This action was brought to recover the value of a grocery stock, furniture aud fixtures contained in the store known as No. 846 Second avenue in the city of New York, alleged to have been wrongfully and unlawfully seized and converted by the defendants. The answer denies the unlawful taking of the property, but admits that the property was taken by them by virtue of a chattel mortgage executed by the plaintiff to the defendants on the 25th day of July, 1892. The evidence discloses the following facts, viz.: That prior to the 21st day of July, 1892, Patrick Brady, the husband of the plaintiff, was the owner of ami conducting a grocery store at No. 846 Second avenue, in the city of New York, and that on that day he executed a bill of sale of the stock and fixtures contained in said store to Anna Brady, his wife, in payment of an indebtedness of $1,500 for money theretofore loaned and advanced by plaintiff to the said Patrick Brady. That thereafter the plaintiff took possession of said stock and fixtures and was in possession on the 25th day of July, 1892. That on said 25th day of July, one John V. Alexander called at the store of the plaintiff accompanied by one of the deputies of the sheriff of the city and county of New York who had an attachment against Patrick Brady based on a merchandise account due Messrs. Sills & Smith, the defendants. That when said deputy attempted to levy under said attachment the plaintiff asserted her ownership of the stock and fixtures. While in the store Alexander, who is a collector and had charge of the claim of Smith & Sills, said : “ Come along to Smith & Sills’ and we will get you an extension of credit, get you anything at all yon want.” Thereupon the plaintiff and her husband went to the place of business of the defendants in Eighth avenue accompanied by said Alexander. On the way to defendants’ store, Alexander impressed upon the plaintiff and her husband that he would get them an extension of credit; when they reached the office of the defendants they met Mr. Sills and one Gardiner Merritt, who acted as counsel for defendants. Immediately on their arrival two papers were prepared, one turned out to be a confession of judgment from Patrick Brady to the defendants for the amount of his indebtedness and the other a chattel mortgage from the plaintiff to the defendants due on demand, covering the property conveyed to her by her husband. Plaintiff says she was told the paper she signed would take the sheriff out and give an extension of credit. She says: “ Alexander said, this will give you time to pay and we will take the sheriff out.” Before leaving the office of defendants Alexander advised her to go and see a man in Jay street as he thought he would.buy the store, which she did, her husband going with her. Returning after a fruitless search some two hours later she found the defendants in possession of the store claiming under the foreclosure of the chattel mortgage she had been induced to execute but a few hours before. The next morning they sold at public auction all the stock and fixtures then in the store. An examiuation of the testimony in this case discloses a fraud perpetrated on the plaintiff by the defendants, through the instrumentality of Alexander and certainly with the knowledge and approval of the defendants, if not their active participation. The verdict of the jury is abundantly sustained by the evidence and is in consonance with substantial justice.

The judgment should be affirmed with costs.

Fitzsimons and Newburger, J. J., concur.  