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(191 App. Div. 769)

(182 N.Y.S.)

FLINN et al. v. SPRINGSTEEL.

(Supreme Court, Appellate Division, Second Department. May 14, 1920.) Evidence 113 (8)-Price received for goods by defendant admissible on question of value.

In action for conversion, evidence as to the price received for the goods by defendant, though not conclusive as to the market value, is admissible as some evidence of value.

Putnam and Jaycox, JJ., dissenting.

Appeal from Westchester County Court.

Action by William Flinn and others against Gilbert J. Springsteel for conversion of certain steel rails. Judgment for plaintiffs, and defendant appeals. Judgment and order reversed, and new trial ordered. Argued before MILLS, RICH, PUTNAM, KELLY, and JAYCOX, JJ.

Frederick W. Clark, of Mount Vernon, for appellant.

John Ambrose Goodwin, of New York City, for respondents.

RICH, J. The Pittsburgh Contracting Company, from whom plaintiffs acquired the rails in January, 1915, had contracted for the construction of that portion of the Catskill aqueduct known as Contract 52 at Elmsford, N. Y. The construction plant was removed after the completion of the work in September, or October, 1915, and the company paid defendant, who had acquired the property in April, 1915, for the privilege of storing it until it could be loaded and shipped. A construction railroad had also been laid for the purpose of conveying materials used in the work, and defendant removed and sold a portion of the rails, amounting to about 55 long tons.

Upon the trial proof was offered on the part of the plaintiff tending to show the market value of the rails at the time of conversion. To meet this, after defendant had testified to the efforts he had made to sell the rails, he offered to show the price he received for them upon the sale and this evidence was excluded. We think this was error. Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032. While this evidence was by no means conclusive as to the market value of the rails, nevertheless it was some evidence of their value which the jury might properly have considered. Bowdish v. Page, 81 Hun,

170, 30 N. Y. Supp. 691, affirmed 153 N. Y. 104, 47 N. E. 44. It follows, therefore, that the judgment and order must be reversed, and a new trial ordered, with costs to abide the event.

MILLS and KELLY, JJ., concur.

PUTNAM, J., votes for affirmance on the ground that the action of the trial justice in excluding the evidence of the defendant's own testimony of the private sale made by him was in accordance with the rule of Latimer v. Burrows, 163 N. Y. 7, 57 N. E. 95, and that no reversible error in the record appears.

With him JAYCOX, J., concurs.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 182 N.Y.S.-2

(192 App. Div. 1)

FINKENBERG v. LEVINSON et al.

(Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Chattel mortgages 34-Bill of sale, with paper showing transfer as security, constitute mortgage.

Bill of sale, purporting to be absolute conveyance, together with paper showing property was transferred as security for a debt, and that it should be retransferred on payment, construed together, show transaction was not a sale, but a mortgage, of the chattels.

2. Chattel mortgages 255-To enforce payment of loan, sale and not delivery of collateral will be ordered.

Where a party holding collateral security for a loan goes into a court of equity to enforce payment from collateral, court will not direct delivery of collateral to him, but will direct sale of property and discharge of loan out of proceeds, surplus to be paid over to owners.

3. Chattel mortgages 275-Other creditor necessary party in suit to satisfy debt from security.

In suit by party holding collateral security to enforce payment of loan from collateral, another creditor of the debtor is a necessary party, in order that its debt may be discharged out of the proceeds of sale.

Appeal from Special Term, New York County.

Action by Leo Finkenberg against Moses Levinson and Bell G. Levinson. From an order overruling defendants' demurrer, and granting plaintiff's motion for judgment on the pleadings, defendants appeal. Order reversed, and motion for judgment denied, and defendants' cross-petition for an order sustaining demurrer and dismissing the complaint granted, with leave to plaintiff to serve amended complaint.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

Sam L. Cohen, of New York City, for appellants.

Samuel I. Goldberg, of New York City, for respondent.

PAGE, J. The defendant Moses Levinson stored certain household goods with the Liberty Storage & Warehouse Company and received warehouse receipts therefor. The defendants negotiated a loan of $2,500 from the Levin-Burgh, Incorporated, and gave four promissory notes therefor. The plaintiff also loaned to the defendants the sum of $2,500, to be repaid, with interest, on or before June 1, 1917. Simultaneously with the execution and delivery of these notes defendants executed and delivered to plaintiff a bill of sale, a copy of which is annexed to the complaint, of the property stored with the Liberty Storage Warehouse as collateral security for said loans, as shown by a separate instrument annexed to the complaint as Exhibit B. At the time the bill of sale was delivered the defendant Moses Levinson delivered to the plaintiff four storage receipts issued by the said Liberty Storage & Warehouse Company covering the property embraced in the bill of sale. The complaint further alleges that no part of the $2,500 due to plaintiff has been paid, and that $1,500 only has been paid to the Levin-Burgh, Incorporated, leaving a balance due

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

to the Levin-Burgh, Incorporated, from the defendants of $1,000. After the default in payment the plaintiff demanded the goods of the Liberty Storage & Warehouse Company, and on its refusal to deliver the same brought an action to recover the possession thereof. The Liberty Storage & Warehouse Company thereupon moved that the defendants herein be interpleaded, and an order was made to that effect. The plaintiff reframed his complaint, setting forth the facts. above alleged, and demands judgment that the plaintiff be declared the true and lawful owner of said property and entitled to the possession thereof, and requiring the warehouse company to deliver over to the plaintiff the property.

[1] Although the bill of sale purports to be an absolute conveyance of the chattels to the plaintiff, Exhibit B, annexed to the complaint, shows that the property was transferred as security for a debt, and that the same should be retransferred to the defendants on the payment of the debt. Thus the two papers (Exhibits A and B), construed together, show that the real transaction was not a sale, but a mortgage on the chattels.

[2] We are not advised by the complaint whether the defendants were interpleaded under section 103 of the General Business Law (Consol. Laws, c. 20) or section 820 of the Code of Civil Procedure. The plaintiff claims that he has reframed his complaint to state a cause of action in equity instead of a cause of action at law. The facts stated in this complaint demonstrate that the plaintiff, although he might be entitled to the possession of the chattels, is not the true and lawful owner thereof, but that, if he took the same actually into his possession, he would still hold them subject to the terms of the mortgage, and where a party holding collateral security for a loan comes into a court of equity for the purpose of enforcing payment of the loan from the collateral, the court will not direct delivery of the collateral to the plaintiff, but will direct that the property be sold, and out of the proceeds of the sale the loan to be discharged and the surplus of the proceeds of the sale, if any, be paid over to the owners thereof.

[3] In an action of this character the Levin-Burgh, Incorporated, is a necessary party, in order that their debt may be discharged out of the proceeds of the sale. In my opinion, therefore, the demurrer was well founded, there is a defect of parties, and the complaint does not state a cause of action showing the defendants to be entitled to the equitable relief demanded.

The order should be reversed with $10 costs and disbursements, and the plaintiff's motion for judgment on the pleadings denied, and defendant's cross-motion for an order sustaining the demurrer and dismissing the complaint be granted, with $10 costs, with leave to the plaintiff to serve an amended complaint within 10 days. All concur.

(191 App. Div. 732)

NEUBAUER v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.)

1. Appeal and error 864—On appeal from judgment alone, appellant may claim that verdict was against weight of evidence.

On an appeal from a judgment alone, appellant may make the claim that the verdict was against the weight of the evidence, in view of Code Civ. Proc. § 1346.

2. Street railroads 114 (14)-Auto truck driver shown to be guilty of contributory negligence.

In an action for injuries to the driver of an auto truck struck by defendant's street car, evidence that plaintiff saw the car approaching before starting to cross and did not thereafter look at it, although it was in plain view and rapidly approaching, held to require a finding that he was guilty of contributory negligence.

Appeal from Trial Term, Kings County.

Action by John A. Neubauer against the Nassau Electric Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

Harold L. Warner, of New York City, for appellant.
George F. Hickey, of New York City, for respondent.

MILLS, J. The action was brought to recover damages for personal injuries which the plaintiff claimed to have sustained through the negligence of the defendant, in consequence of which one of the defendant's cars collided with an automobile truck driven by plaintiff, at or near the intersection of Avenue J with Ocean avenue, in the borough of Brooklyn, on the 25th of March, 1918.

[1] The main contention of the appellant here is that the plaintiff was guilty of contributory negligence in not looking again before he attempted to cross the tracks; when some 50 feet below that point, he had looked back to the south and actually seen the car approaching from that direction. I am not clear that the appellant is in a position to raise that point in just that way. While at the end of plaintiff's case the defendant moved to dismiss upon the ground, among others, that plaintiff had not proven himself free from contributory negligence, defendant made no motion to dismiss at the end of all the case; and by its request to charge it apparently consented to the submission of the question of contributory negligence to the jury as a question of fact for them to decide, at least in the first instance. A motion for a new trial was made and denied, but no order denying that motion appears in the record and the notice of appeal is limited to the judgment. I understand, however, that even on an appeal from a judgment alone the appellant may now make the claim that the verdict was against the weight of evidence (see section 1346 of the Code of Civil Procedure). It seems to me that the only difficult question presented by the appeal is this one, namely: Was the finding,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

which the verdict imports, that plaintiff was free from contributory negligence, against the weight of the evidence?

The other contention of the appellant is clearly without merit namely, that it was error for the court to charge that plaintiff was not bound to look continuously to the south, and that the ordinance as to east and west bound vehicles was not applicable to a case where, as here, the vehicle ahead attempted to cross to the other side of the street. No doubt the rule of common law applicable to the situation was practically the same as that of the ordinance, namely, that the vehicle, in attempting to cross the street, was bound to yield the right of way to the following vehicle coming along it if there was not sufficient space for the crossing.

[2] As to the question whether or not the verdict upon the issue of contributory negligence was against the weight of the evidence, the material facts are the following: Plaintiff was driving an automobile truck northerly along the east side of Ocean avenue, nearing Avenue J; the former running north and south, and the latter east and west. The truck was 20 to 25 feet long and open; that is, without any covering over the driver's seat. Ocean avenue is very wide, having a park space in the center, through which run the two railroad tracks. The width of the roadway east of the parkway is 23 feet, and the park space extends 5 feet outside of the tracks. Plaintiff's auto was coming along about 5 feet from the easterly curb and with one side of the auto about 17 feet from the nearest rail of the tracks. When plaintiff was about 15 feet from-that is, south ofAvenue J, he looked back to his left and saw a north-bound car approaching about 200 feet south of Avenue J. He further testified that the car was then about 50 to 75 feet north of a crossover through the parked space, which crossover was really 375 feet south of Avenue J, so that the car must have been then some 285 feet south of plaintiff, or 300 feet south of Avenue J. The latter avenue is 80 feet wide. As plaintiff reached the corner of the intersection of the avenue he put out his left hand and turned to his left-the west-to cross the tracks, and as he was driving across he suddenly became aware that the car was almost upon him, coming at the same rate of speed at which he had seen it proceeding. He tried to turn out of its path, but could not, and his auto was struck by the car at about 5 feet back from his seat. His auto approached the point of his attempted turning at slow speed, so that he could have stopped in 2 feet.

Plaintiff did not look towards the car again, and paid no attention to it after he saw it the one time behind the auto. Plaintiff was conscious that it was his duty to give the car the right of way, if there was any question of precedence. When the plaintiff saw the car approaching, it was coming fast. He admitted that as he turned to cross he could have seen the car approaching some 20 or 25 feet away, had he just glanced in that direction "out of the corner of your eye." It does not appear that there was any other vehicle or object about to distract his attention. He testified that, as he first looked back and saw the car, he saw people standing on the easterly side of the grass plot near the crossing of Avenue J. It is manifest

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