Runsdorf v. Coriell , 72 N.J.L. 13 ( 1906 )

The opinion of the court was delivered by

Gummere, Chief Justice.

On the 16th day of September, 1903, one Gustav Lewis recovered a judgment in the Union Circuit Court against Bernard Ostrow, and on the same day sued out a writ of fieri facias thereon, which was delivered to the defendant to be executed, the latter being at that time the sheriff of the county. He proceeded to execute the writ by levying upon and taking possession of fourteen cows, which he found upon Ostrow’s farm. The plaintiff thereupon instituted this suit to recover possession of the cows from the sheriff, and at the trial set up that he had purchased them from Ostrow prior to the recovery of the Lewis judgment. In support of this claim he produced and offered in evidence a bill of sale for them, made by Ostrow to him, and bearing date the 5th day of September, 1903. Both he and the attorney who prepared the instrument testified that it was executed in New York on the day of its date, and that as a part of the consideration the plaintiff then paid $250. This payment was testified by them to have been made by the giving of a check for that amount by the plaintiff to the attorney, and the giving by the attorney of his check to Ostrow for $240, the sum of $10 being retained by the attorney as compensation for his services. In corroboration of this story the plaintiff produced in evidence two checks, each dated September 5th, 1903, one of which was drawn by himself to the order of Morris D. Silverstein (the attorney), for $250, and the other by Silverstein to the order of Ostrow, for $240. Silverstein,- on his cross-examination, was asked when he deposited in bank the check drawn to his order, and in answer to that question stated that it might have been the same day and it might have been a few days afterwards. An inspection of the check discloses the following endorsement upon it: “Received payment through the New York Clearing House September 25, 1903. Endorsements guaranteed. Jefferson Bank, N. Y.” A like endorsement appeared upon the other check, -except that the date of payment was stated to be September 26th. The defence was that this bill of sale was fraudulent in character, prepared after the levy by the attorney and antedated for the purpose of making it appear that Ostrow had ceased to be the owner of the cows prior to the suing out of the execution by Lewis. In order to discredit the testimony of Silverstein, the defendant called a bank clerk for the purpose of proving by him that the length of time it takes for a check deposited in a New York bank to go through the clearing house and be paid is only a few days. This evidence was excluded as irrelevant, on the objection of the plaintiff, and the ruling of the court excepted to by the defendant.

In our opinion, this testimony was improperly excluded. If it be true that a check ordinarily passes through the clearing house and is paid within a day or two after its deposit in bank, then that fact raises a strong presumption that the two checks produced by the plaintiff were not deposited until after the issuing of the execution on the Lewis judgment and the making of the levy thereunder. If they were not deposited until after the making of the levy, the defendant was entitled to have that fact presented to the jury and considered by them in determining whether the bill of sale was executed in good faith on the day on which it bears date, or, fraudulently, on a’day subsequent to the making of the sheriff’s levy, for the purpose of defeating-the rights of Lewis thereunder.

The conclusion we have reached upon this ruling of the trial court makes a consideration of the other reasons upon which a new trial was asked unnecessary.

The rule to show cause will be made absolute.