Fierro v. Schnurmacher

47 Misc. 601, 94 N.Y.S. 365

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1905
• Status: Published

Opinions

Scott, J.

The only question that could under any circumstances merit consideration upon this appeal is whether or not the verdict is against the weight of evidence, for clearly the learned justice was right in refusing to dismiss the complaint. The plaintiff’s horse and wagon were sold under a chattel mortgage which she had never signed. Some one, therefore, was guilty of a conversion and the only question in the case is whether the marshal who made the sale was acting under the instructions of the defendant, or of his brother, one Lipp Schnurmacher. Concedely it was the defendant who sold the horse and wagon to plaintiff’s husband, as security for the price of which the mortgage ivas given. Defendant now says that the horse he sold belonged to his brother, but he does not say that he mentioned that, fact at the time of sale. The mortgage was made to Lipp Schnurmacher. He was not produced as a witness at the trial. The fact that he was named as mortgagee and the other fact that the auctioneer paid him the money realized upon the marshal’s sale are not conclusive that it was he who instructed the marshal to make the sale. Two witnesses who were called know who instructed the marshal to make the sale. They are the defendant and the marshal. If Lipp Schnurmacher had directed the marshal to sell the property it would have been easy for them to have said so. But neither of them did say so, and the defendant does not deny that he gave the instruction. The question at issue was clearly and fairly presented to the jury and we should not, in my opinion, disturb the verdict.

Dügeo, J., concurs.