Arsene v. La Fermina

38 Misc. 776, 78 N.Y.S. 829

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1902
• Status: Published

Opinion

MacLean, J.

The plaintiffs constituted .the firm of Arsene & Son, flour merchants. The elder testified, against defendant’s objection and exception, that a quantity of macaroni in boxes, broken macaroni, and paste, belonged to the plaintiffs. This is about all the evidence of ownership in the ease. The same witness also said that on November 6, 1901, he demanded the merchandise from the defendant, who said he would not deliver those goods without the production of a receipt given to one Schiaifino. On the eighth of November this action was begun for conversion. It resulted in a judgment for the plaintiffs for three hundred and forty-one dollars and forty-eight cents. It appeared upon the trial, that the plaintiffs had furnished flour to Schiaifino, who, called by the defendant, testified that he was a manufacturer of macaroni, was working under a contract, and was accountable for the macaroni in question. It was not shown that this macaroni was made from flour which came from the- plaintiffs. It further appeared that Schiaifino was indebted to the plaintiffs, who, it would seem, hoped for the assistance of the defendant in collecting their debt, upon Schiaffino’s transferring his machinery and business. But the plant stood in the name of Mrs. Schiaifino and she turned it over to Mr. La Fermina without any advice to the plaintiffs, who were disappointed. Also against objection and exception, the plaintiffs introduced in evidence a judgment obtained by them, November twenty-sixth, against Schiaifino for three hundred and forty-nine dollars and ninety-nine cents. It is spoken of as a money judgment, but the roll is not returned and the cause of action is not stated. The evidence adduced upon the trial was not sufficient to support the cause of action of the plaintiffs. Neither their money judgment nor their disappointment over La Fermina’s conduct could transmit the title to the goods into their ownership. The request for the production of the receipt given to Schiaifino was not to be treated as an unreasonable condition. Arsene the elder seems to have been aware of, if not party to, the giving of the receipt. He was present at the transfer, or the first part of it. He testified there was conversation about the manufactured macaroni being left on the premises and that it was to be left there; that Schiaifino was handing it over and he was taking the receipt, he took the receipt; then later, that he first learned of the receipt when he made the demand; but he had said of his own volition that the machinery of the premises was being transferred that day, and the stock likewise was being transferred by Mrs. Schiafimo to Mr. La Eermina. This testimony he did not take back or qualify. Judgment should be reversed.

Ebeebmah, P. J., and Gilbebsleeve, J., concur.

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