Caspar v. O'Brien

By the Court.—Freedman, J. This action was brought by the plaintiff against the late sheriff of the city and county of New York, to recover the value of certain merchandise taken by said sheriff from the possession of the plaintiff under process of court not directed against the plaintiff. In March, 1869, the goods were sold by Wheelright, Pippey & Co., of New York, to the firm of Marks & Cohen, then doing business at No. 100 Chambers-street, in the city of New York. [403] Shortly afterwards the goods were sent to Paterson, N. J., where Marks & Cohen kept a branch store. Evidence was also given that in May, 1869, another Marks, named Harris Marks, bought out the store of Marks & Cohen at Paterson, together with the stockof goods therein contained, which included the merchandise above referred to. Harris Marks is a son-in-law of the plaintiff, and plaintiff claimed that on June 16, 1869, he, through his agent, one Jacobs, who is another son-in-law of plaintiff, advanced seven hundred and fifty dollars to Harris Marks, and that he received, through said agent, as security for the loan, the merchandise in controversy. It was contained in four cases, and sent from Paterson to New York. The sheriff levied upon these cases, while they were on storage in the storehouse No. 28 Jay-street, in the name of the plaintiff, under and by virtue of an attachment procured by Wheelright, Pippey & Co. against the property of Marks & Cohen, and in doing so claimed that they really belonged to Marks & Cohen, and that the Ownership in Harris Marks, as claimed on the part of the plaintiff, was simulated, and constituted merely part of a scheme to defraud the creditors of Marks & Cohen. The questions of fact involved in the case were fully and fairly submitted to the jury, under a charge to which the defendant took no exception, and they were determined by the jury in favor of the plaintiff. No motion to dismiss the complaint was made at ■ any time, nor did the defendant ask for the direction of a verdict. Defendant’s motion for a new trial upon the judge’s minutes was, therefore, properly denied (Rowe v. Stevens, 12 Abb. Pr. N. S., 389). The only remaining questions relate to the rulings of the court below in permitting Harris Marks to answer certain interrogatories. He was called as a witness for the plaintiff, and placed upon the stand [404] after defendant had rested. He testified that in June, 1869, he had a money transaction with the plaintiff; that he took seven hundred and fifty dollars from the plaintiff and gave him goods as security therefor. He was then asked: “ At that time, who did these goods belong to?” The defendant, by his counsel, objected to the question, on the ground that it was incompetent, and that it called for a conclusion of law on the part of the witness, and not for a statement of fact. The court overruled the objection, and permitted the question to be answered; to which ruling the defendant excepted* The witness thereupon testified that at that time the said goods belonged to him ; that they belonged to him when he gave them to the plaintiff as security ; that he delivered them to Jacobs in Paterson; that the name of Harris Marks was then up in the store, and that he was in the possession of the store. He was then asked the further question: “And the owner of it at that time?” This the court also permitted to be answered against the objection and exception of the defendant, and the witness said : “Yes, sir, I think about a week or two previous to the time I borrowed that money of Mr. Caspar, I had been in possession of the store.” These inquiries called for a fact, and not for a conclusion of law, as claimed. The witness was in a position to know how the fact in that respect was. The questions were, therefore, admissible, and it was the office of a cross-examination to discover whether the witness stated in his answer a fact or a conclusion. This was expressly held in Walsh v. Kelly, 42 Barb., 98 (104), which involved the admissibility of a precisely similar question. • In Knapp v. Smith, 27 N. Y., 277 ; Sweet v. Teeth, 14 Id., 467, and Davis v. Peck, 54 Barb., 425, analogous questions were sustained for the same reason. Neither the questions in the case at bar, nor the answers thereto, were subject to the criticism that they [405] or either of them embraced the whole merits of the case, and left nothing for either court or j ury to decide. The inquiries were as to the fact of naked ownership at a particular time, while the issue to be determined by the jury involved the bonafides of the possession and ownership at the time of the loan made by the plaintiff. The judgment and order should be affirmed, with costs. Barbour, Ch. J., and Monell, J., concurred.