Finance Co. of America v. Josephson

88 N.Y.S. 707

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 13, 1904
• Status: Published

Opinion

SCOTT, J.

It was necessary for the plaintiff, in order to entitle to a judgment, to that the identical goods, for the value of which it sued, came into the possession of the defendant as assignee. -Its sole reliance to establish this fact were the admissions of Hirschberg, the president of the assignor company. Some of those admissions appear to have been made before the assignment, and some after. The former were probably admissible, as against the assignee, but not the latter. Von Sachs v. Kretz, 72 N. Y. 548. So much of these admissions as were admissible were, at best, rather vague-and general, and fell far short of admitting that all the goods sued for had been returned, and were included among those transferred toi the assignee. As against this is the positive testimony of Hirschberg that some of the.returned goods were at once resold, and, if so, they could not have been into the hands of the assignee. The amount and value of the goods thus resold he puts at $325. ■ ■ The charge of the court as to the shifting of the burden of -proof was calculated to mislead the jury. It was to the effect that, when the plaintiff had showed that certain goods had been returned to the assignor, the burden shifted to defendant to- show that he did not receive them. The mere showing that certain goods had been returned to the assignor prior to the assignment raised no presumption that these same goods had been retained by the assignor until the assignment, and then passed to the assignee.

Upon the' whole case, the judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff .will stipulate that the judgment be reduced to $503.82, in which case the judgment as so reduced should be affirmed, without costs. All concur.