Labash v. Edelman., 34.

• Decision Date: 04 November 1943
• Docket Number: No. 34.,34.
• Citation: 34 A.2d 414,131 N.J.L. 36
• Parties: LABASH v. EDELMAN.
• Court: New Jersey Supreme Court

131 N.J.L. 36

34 A.2d 414

LABASH

v.EDELMAN.

No. 34.

Court of Errors and Appeals of New Jersey.

Nov. 4, 1943.

Appeal from Supreme Court.

Action in replevin by John J. Labash, administrator, etc., against Morris Edelman. From a judgment for plaintiff, the defendant appeals.

Affirmed.

On appeal from a judgment of the Supreme Court in which Court Mr. Justice Bodine filed the following opinion:

‘This is an action in replevin. The plaintiff had judgment. Borris Weber lived in a room in defendant's house. Before his death, he purchased a radio and victrola for $150. At the time of his death he owed on the contract $30. His administrator brought this action. The defendant, corroborated by his wife, testified that about three weeks before Weber's death he had purchased the radio and victrola for $50. No objection was made to this evidence. He held no documents to prove this. It appeared that Weber had, after the alleged sale, purchased records.

‘The proofs abundantly support the findings of the trial judge. The story by the defendant was most improbable. Weber would hardly have bought records for a victrola he did not own, or have sold for so little an instrument which he had so lately acquired and which was not entirely paid for. The findings of the trial judge are amply supported.

‘The judgment is affirmed with costs.’

BROGAN, Chief Justice, PORTER and COLIE, Justices, and RAFFERTY, HAGUE, and THOMPSON, Judges, dissenting.

Aaron Heller, of Passaic, for appellant.

Irving S. Zacharewitz, of Passaic (Jacob I. Jaffe, of Passaic, of counsel), for respondent.

PER CURIAM.

The judgment under review will be affirmed for the reasons expressed in the opinion filed by Mr. Justice Bodine.

For affirmance: The CHANCELLOR, Justices PARKER, CASE, and DONGES, and Judges DEAR, WELLS and DILL-7.

For reversal: The CHIEF JUSTICE, Justices PORTER and COLIE, and Judges RAFFERTY, HAGUE and THOMPSON-6.

BROGAN, Chief Justice (dissenting).

I am unable to agree with the result arrived at by the majority for the reason that at the trial of the issue the plaintiff produced no evidence identifying the chattel in dispute as the very property of his decedent, and consequently there was no proof to support his claim to title or possession.

The action was in replevin. The plaintiff as administrator of the Estate of Boris Weber sued out the writ to obtain possession of a specific chattel which had been owned by the decedent, to wit, an R.C.A. combination radio and victrola No. 133, 667 or, in the alternative, to have judgment for its value which was stated to be the sum of $150.

It appears that six months previous to his death, Weber had purchased the instrument described above from a dealer in the City of Passaic and that about two weeks before his death he had purchased some records for it; that the sum of $30 was still owed to the vendor on account of the purchase price of the machine. The decedent, Weber, had occupied a furnished room in the house of the defendant, Edelman. The plaintiff's claim is that Edelman fraudulently appropriated the chattel to his own use upon the death of the owner. Edelman, corroborated by his wife, maintained that he had purchased the instrument, found in his rooms, from Weber three weeks before the latter's death for the sum of $50.

It is a strain upon credulity, as the Supreme Court pointed out in its opinion, to accept the statement that the owner of the instrument would have purchased records for it a week after it had been sold. This and other incidents in the testimony of the defendant left much to...