Kulin v. Heller
| Decision Date | 25 February 1903 |
| Citation | 69 N.J.L. 33,54 A. 519 |
| Parties | KULIN v. HELLER. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Essex County.
Action by Clara Kulin against Margaret Heller, executrix of William Heller, deceased. Verdict for defendant. Plaintiff brings error. Reversed.
Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.
Wm. S. Stuhr, for plaintiff.
McDermott & Fisk, for defendant.
VAN SYCKEL, J. This suit was brought by Clara Kulin against William Heller for breaking and entering her place of business on the 28th of June, 1897, and carrying away her goods and chattels. Pending the suit William Heller died, and his wife was substituted, as his executrix, as defendant in the case. At the time of the alleged trespass, William Heller was sheriff of the county of Hudson, and, by virtue of an execution against Frederick Kulin, entered upon the premises specified in the declaration, and levied upon said goods and sold them as the property of said Frederick. Clara Kulin claimed that the goods were her property, and not the property of her husband. Clara claimed to have acquired title to the goods from her husband, who was engaged in the butcher business. After the alleged sale to her, the business was continued in the same way as before the sale, and the judgment under which the goods were sold was recovered for articles sold to the husband for the business at the butcher shop.
The trial court properly submitted to the jury the question whether the alleged sale to the plaintiff was an attempt to protect the property of the husband from seizure by his creditors, with instructions that, if it was the property of the wife, she was entitled to recover the value of the goods. The jury found a verdict in favor of the defendant.
The plaintiff testified that she owned the premises upon which the trespass was committed. This testimony was erroneously overruled, but she was afterwards permitted to prove and offer in evidence her deed.
On the cross-examination of the plaintiff, the trial court permitted certain questions to be asked, to which her counsel objected; but she replied that she did not know, and therefore she suffered no injury thereby.
The plaintiff testified that William Heller broke open the front door of her premises and came in. This was overruled, but, as she afterwards testified that she did not know William Heller, it was evidently hearsay, and therefore not competent.
The plaintiff requested the trial court to direct a verdict for the plaintiff, and assigns error for refusal to do so. The plaintiff was not entitled to this direction, for two reasons: (1) it was not proven that a trespass...
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