Kett v. Masker

• Decision Date: 03 April 1914
• Citation: 86 N.J.L. 97,90 A. 243
• Parties: KETT v. MASKER.
• Court: New Jersey Supreme Court

90 A. 243

86 N.J.L. 97

KETT

v. MASKER.

Supreme Court of New Jersey.

April 3, 1914.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by Thomas J. Kett against John Masker. Judgment for defendant, and plaintiff appeals. Affirmed.

The action was in replevin, brought by Thomas J. Kett against John Masker, one of the constables of the first district court of Jersey city, for the recovery of property held by him under an attachment in the suit of Auston Nichols Company against Frank Nuzzo.

Nuzzo conducted a grocery store at No. 153 Sixth street, Hoboken. On May 9, 1913, he transferred his store in bulk to Herman J. Jaeger, a clerk in his employ, for a consideration of $2,500, of which only $100 was paid in cash, and a mortgage given for $2,000. The bill of sale and mortgage were recorded on the same day. Shortly thereafter Jaeger sold the same store to Thomas J. Kett, an auctioneer, for about one-half of what he paid, namely, $1,200.

There was no evidence that Jaeger, when he acquired the store, made any inquiry about creditors, as required by the sales in bulk law. Nuzzo owed his creditors about $2,000. There was evidence that Kett inquired of Jaeger about Jaeger's creditors, but was informed that there were none. Kett made no inquiries about Nuzzo's creditors, and the name of Nuzzo was on the store when Kett purchased.

The defendant, a constable, levied upon the goods in the store under a writ of attachment against Nuzzo, at the suit of one of his merchandise creditors. The trial court held that Kett had not satisfied the requirements of the act, which declares the purpose of the Legislature that no sale of merchandise in bulk or stock of goods be made without inquiry, in good faith, and that sale was characterized by instances which would have called the attention of any ordinary business man to the fact that it was made as a fraud upon creditors, and rendered Judgment for the defendant.

Argued November term, 1913, before GARRISON, TRENCHARD, and MINTURN, JJ.

Haight & Autenreith, of Jersey City, for appellant. Hartshorne, Insley & Leake, of Jersey City, for appellee.

MINTURN, J. (after stating the facts as above). The district court upon a basis of fact, furnished by the testimony, found that the sale in bulk in this case, to Jaeger, was void, as having been made fraudulently in contravention of the provisions of the so-called Sales in Bulk Act (Laws 1907, p. 570). We think the testimony was ample to warrant the finding. There is nothing in the testimony from which we can reasonably infer that either the plaintiff or his vendor, Jaeger, made the slightest pretext to comply with the provisions of that act. Their failure to do so is defended upon the, ground, inter alia, that the act is unconstitutional, as contravening the 14th amendment of the federal Constitution. Substantially similar statutes in other jurisdictions have been held to be constitutional. Thorpe v. Penrock Co., 99 Minn. 22, 108 N. W. 940, 9 Ann. Cas. 229; Williams v. Wichita Bank, 15 Okl. 477, 82 Pac. 496, 2 L. R. A. (N. S.) 334, 6 Ann. Cas. 970; Squire v. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322; Neas v. Borches, 109 Tenn. 398, 71 S. W. 50, 97 Am. St. Rep. 851. The United States Supreme Court in Kidd & Co. v. Musselman Co., ...