Bowdish v. Page

• Decision Date: 11 May 1897
• Citation: 47 N.E. 44,153 N.Y. 104
• Parties: BOWDISH v. PAGE et al.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 104

47 N.E. 44

BOWDISH

v.PAGE et al.

Court of Appeals of New York.

May 11, 1897.

Appeal from supreme court, general term, Fifth department.

Action by Jackson W. Bowdish against Eseck Page, William H. Murray, and the Citizens' National Bank of Hornellsville. Judgment for plaintiff. Reversed by the general term (30 N. Y. Supp. 691), and plaintiff appeals. Affirmed.

This action was brought by the plaintiff, as assignee for the benefit of creditors of Mortemore and Lawrence Allison, doing business in Canisteo, Steuben county, to recover for the conversion of a quantity of boots and shoes. The defendants are the Citizens' Bank of Hornellsville and the sheriff and deputy sheriff of Steuben county, and they justified the taking of the property under an execution issued upon a judgment in favor of the bank against Isaac Allison. Isaac Allison was in the boot and shoe manufacturing business at Canisteo, and on October 1, 1883, being indebted to M. & L. Allison, executed and delivered to them an instrument in writing in the nature of a chattel mortgage upon his goods, etc., to secure payment of his indebtedness. July 21, 1884, M. & L. Allison assigned to the plaintiff for the benefit of creditors. The referee has found that on July 23, 1884, upon the demand of the plaintiff, Isaac Allison turned over the possession of the property covered by the chattel mortgage to the plaintiff, as assignee, and surrendered his interest therein, and that the plaintiff had the actual and continued possession of the same, as assignee for the benefit of the creditors of M. & L. Allison, until dispossessed by the defendants. This finding has sufficient support in the evidence given upon the trial. The bank recovered its judgment April 30, 1884, against Isaac Allison; but execution was not issued until July 29, 1884. Levy was made August 1st, by the sheriff, who on March 21, 1885, took the goods away, and sold them, the bank becoming the purchaser.

James H. Stevens, for appellants.

G. L. Smith, for respondent.

GRAY, J. (after stating the facts).)

There is but one important question of law upon this appeal, which we need briefly consider, and that relates to the right of the plaintiff to maintain this action. When he became the general assignee of M. & L. Allison for the benefit of their creditors, on July 21, 1884, he found an existing indebtedness to his assignors from Isaac Allison. Isaac had executed an instrument in the nature of a chattel mortgage to secure his indebtedness, which, the referee found, though made in good faith, had become void through the conduct of the parties with respect to the property so mortgaged. A few days subsequent to the assignment, however, Isaac, upon the demand of the plaintiff, re-enforced by threats of legal proceedings based upon his indebtedness to the assigned estate, personally and orally transferred to the latter the goods in question, which were covered by the mortgage. The referee has found that that transfer was followed by an actual possession, taken by the plaintiff, and continued until the property was taken away by the sheriff, under a levy upon an execution issuing upon a judgment recovered by the defendant bank against Isaac Allison. The evidence is sufficient to support the findings of the referee, and to show that the plaintiff's title to the goods can rest upon the transaction between him and Isaac. It would, at least, show that there was a transfer to secure the payment of Isaac's debt, if not in satisfaction thereof, and that would vest sufficient title and possession in the plaintiff. At that time the bank had acquired no lien; no execution having issued upon its judgment, theretofore entered, until at a date subsequent to the plaintiff's acquisition of title. So far as the subsequent history of the matter shows, or...