Breit v. Solferino

• Decision Date: 09 March 1909
• Parties: BREIT v. SOLFERINO.
• Court: New Jersey Supreme Court

72 A. 79

77 N.J.L. 436

BREIT

v. SOLFERINO.

Supreme Court of New Jersey.

March 9, 1909.

(Syllabus by the Court.)

Appeal from District Court of Hoboken.

Action by William Breit against John Solferino. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ.

A. O. Ciccarelli, for appellant. I. F. Goldenhorn, for appellee.

MINTURN, J. The plaintiff held a chattel mortgage for the sum of $500 upon certain goods and chattels of one Benjamin Fleischer, which was duly acknowledged and recorded. Subsequently the plaintiff obtained a judgment against Fleischer in the district court of the city of Hoboken, and sold the mortgaged goods under an execution issued upon the judgment. Prior to the sale the constable was notified of the existence of the mortgage by the counsel for the mortgagee, but ignored it, proceeded with the sale, and took possession of the mortgaged goods in virtue thereof. The mortgagee thereupon instituted this action in tort against the defendant.

One of the defenses relied upon was that the mortgage was fraudulent. But there was no competent proof of that allegation. The plaintiff's attorney, who drew the mortgage, testified to the fact that he had seen the consideration ($500) paid by the mortgagee to the mortgagor. The fact that the court overruled the question upon cross-examination whether the witness could tell the denomination of the bills was of little moment, and it is not perceived how its exclusion could prejudice the defendant.

It was further contended that because the plaintiff had not served a notice of claim of property upon defendant, under section 190 of the district court act (P. L. 1898, p. 624), the defendant was warranted in ignoring the plaintiff's claim, and selling the goods under the execution; and in support of this contention defendant relies upon Masters v. Champion, 69 Atl. 224. That case, however, affords no support to the contention, for there the owner of the chattels sold, made a written claim pursuant to which the sale was adjourned, and no further effort was made to enforce the claim, and the Court of Errors put the decision entirely upon the ground of abandonment by the claimant of her claims. In the case at bar no adjournment was had, and no opportunity was afforded the plaintiff to apply for a jury and try the right of property, as contemplated by section 190. The case sub judice, therefore, is ruled by those cases which have...