Curcio v. Marx

120 N.Y.S. 721

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 21, 1910
• Status: Published

Opinions

LEHMAN, J.

After the judgment debtor was dispossessed for nonpayment of rent, a new bakery was opened in other premises under the maiden name of the plaintiff, his wife. The sole question in this case is whether the stock in the new bakery belonged to the judgment debtor or his wife. The plaintiff claims that she bought the business from one Spinelli about March 15, 1909, and produces in evidence a bill of sale properly acknowledged by Spinelli; but the bill of sale, while dated at the time of the alleged sale, is acknowledged after the levy was made; In view of this fact, the plaintiff’s failure to call Spinelli, although he was in court and apparently friendly to her, is very significant. She did call a Hour dealer, who testified that he sold flour to plaintiff and billed all goods in her name, because Spinelli told rhim at the time of the alleged sale that she was the purchaser. This testimony is not to my mind in any way controlling. It does not follow that the goods belonged to the plaintiff because they were billed to her. Moreover, this flour was sold “on time,” and the witness is perhaps not wholly disinterested in his testimony.

Against this testimony we have the statement of the defendant and of two witnesses, neither of them, however, disinterested, that the plaintiff acknowledged at the time of the levy that her husband was the owner of the bakery. This testimony is contradicted by the plaintiff, and she seeks to corroborate her testimony by showing that defendant received a bond of indemnity from the judgment creditor, which recites that “the goods which appear to belong to Joseph Campagnaro are claimed by another person or persons.” It seems to me that this bond has little materiality. Where a marshal levies upon property in a store which bears a different name from that of the judgment debtor, he might well demand a bond of indemnity. It seems to me that under these circumstances and after seeing the parties the trial justice might well conclude that the property belonged, not to the plaintiff, but to the judgment debtor. It is perfectly true that a marshal is not a judicial officer, and has no right to determine conflicting claims. When he does so, it is at his own peril; but where, upon the trial, the justice determines that the goods were the property of the judgment debtor, the marshal is not liable for conversion simply because a third party claims them.

The judgment should be affirmed, with costs.

GIEGERICH, J., concurs.