Wick v. Kunzeman , 62 N.Y.S. 537 ( 1900 )

Leventritt, J.

A careful reading of the record satisfies me that the circumstances attending the alleged transfer of the property, the ownership of which is in dispute, were sufficiently suspicious to have warranted the court in holding that the sale was merely colorable.

The action was brought on a bond pursuant to which the defendants obligated themselves to pay a specified sum in the event that one Henry Staby failed to establish general ownership in certain property as of the time of its seizure by a city marshal. Staby was in the employ of one Adolph Schaedel, a baker, at 173 First avenue, in this city, in the.capacity of driver of a delivery wagon. Schaedel had purchased flour from-various concerns, among them the firm of Weeks & Parr, the assignors of the plaintiff. Their last delivery had been made on the 3d day of May, 1899. On that day Schaedel promised the plaintiff, a salesman of Weeks & Parr, that he would on the following Monday, the eighth day of May, make payment for bills due. On the fifth day of May, Schaedel under an alleged bill of sale sold his entire business to his driver for the sum of $1,425. The transaction! took place at night. Thereupon and after midnight Schaedel moved out, and, to quote Staby, “ he told me he had rooms uptown and was going to come back Monday, and for me to go in the business ”. Schaedel returned at four o’clock Monday morning, removed some furniture and, according to Staby, has not been seen since. Staby claimed that he paid the full consideration recited in the bill of sale.. He asserted that he had paid it in cash, and when pressed to explain how he, an ordinary workman and driver in the employ of Schaedel, was possessed of so large a sum, maintained that he had received it six or seven months before the sale from his wife’s relatives in Germany. He had not placed the money in bank, and though he named a responsible firm of resident bankers through whom he claimed to have received it, he called no one to corroborate the receipt. He positively denied that he had ever had an interview with one Jacob Berlesco, an employee of Weeks & Parr; yet the latter after having testified that he had called on Schaedel on Saturday, the sixth day of May, one day after the alleged transfer, and that he also had then been put ofE to the following Monday, added that on that day he found on the. premises, only Staby who, to use the words of the witness, “ told me, laughingly, he is not here any more. He run away and moved about four o’clock in the morning. * * * I lought five hundred dollars’ worth of stock, md lought it cheap ”.

In view of these several conflicts and taking into consideration that if Staby’s version was true there was' ample corroborative evidence accessible to him which he failed to present, I am of the opinion that the court, aided by its opportunity of observing the •demeanor of the several witnesses, was justified in discrediting the story that at an unseasonable hour a driver, without apparent means, had paid a large sum for the business of his employer. The judgment should be affirmed. ■

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.