Verheyleweghen v. Klein

• Decision Date: 17 October 1955
• Citation: 145 N.Y.S.2d 178,208 Misc. 783
• Parties: Peter VERHEYLEWEGHEN, Plaintiff, v. Emanuel KLEIN, doing business under the style and name of Crown Diamond Company, Defendant.
• Court: New York Supreme Court

Page 178

145 N.Y.S.2d 178

208 Misc. 783

Peter VERHEYLEWEGHEN, Plaintiff, v. Emanuel KLEIN, doing business under the style and name of Crown Diamond Company, Defendant.

Supreme Court, Trial Term, New York County, Part III.

Oct. 17, 1955.

George M. Feigin, New York City, for plaintiff.

David Davidoff, for defendant.

SCHREIBER, Justice.

The plaintiff had been selling precious stones for thirty years. He was the owner of a loose diamond weighing 11.75 carats valued at $1,050 per carat, or a total of $12,357.50. For some time he had been doing business with the defendant and sold him diamonds. On or about November 27, 1952, the defendant took from plaintiff the above-described diamond. This stone was given to defendant and accepted by him pursuant to arrangements embodied in a paper writing which provided:

'The merchandise described herein is delivered to you on memorandum only, at your risk of loss, or damage, by theft, robbery, fire or otherwise. Title to the said merchandise is and shall remain in P. Verheyleweghen and is held by the undersigned subject to the order of P. Verheyleweghen, the delivery thereof being for the purpose of inspection only, and is to be returned on demand'. (Plff's Ex. 2.)

A further provision contained in this exhibit is 'The undersigned has no right to transfer the said merchandise to any other person, firm or corporation, whether on memorandum or otherwise, without the written permission of P. Verheyleweghen.'

The defendant notwithstanding the memorandum approved by him (Plff's Ex. 2) turned the stone over to one Leslie Jonap who signed a receipt showing that he was accepting same from defendant for examination and inspection, the diamond to remain the property of defendant until sold by defendant to said Jonap (Deft's Ex. A).

Delivery to Jonap was in direct violation of the terms under which defendant took the stone from plaintiff. Jonap's place was burglarized and the diamond was not returned to defendant. The plaintiff demanded the return of the diamond but defendant failed to return it or pay the value of same to plaintiff. Defendant urges that the custom of the trade was for dealers such as he to turn over to prospective purchasers diamonds taken on a memorandum such as used in this case.

Since the terms of the memorandum agreement (Plff's Ex. 2) are plain and unambiguous, proof of custom or usage and the alleged conversation between the parties, which would contradict or vary the terms of the agreement are inadmissible and are struck. Green v. Wachs, 254 N.Y. 437, 173 N.E. 575.

On or about the 21st day of November, 1954, the defendant filed in the United States District Court for the Eastern District of New York, a petition to be adjudged a bankrupt. This plaintiff's claim was listed. The defendant was duly discharged in bankruptcy and urges that the claim herein was thus discharged. The question in this case is whether this debt comes within the provisions of section 17, subdivision a(2) of the Bankruptcy Act, 11 U.S.C.A. § 35, subdivision a(2), which excepts...