#### Solomon Reitman, Respondent, *v.*Frank D. Creamer, as Sheriff, etc., and The H. B. Claflin Co., Appellants. Solomon Reitman, Respondent, *v.*Frank D. Creamer, as Sheriff, etc., et al., Appellants.

(Supreme Court, Appellate Term,

March, 1899.)

Conversion — Failure of title and possession.

Where a clothing manufacturer, upon being pressed by Bis vendors-to return cloths sold him, concoctis, with the aid of a dealer in real estate and the father-in-law of the latter, a scheme to hinder and defraud his vendors and in twenty-four hours transfers the cloths, through said real estate dealer, to his father-in-law for considerations past, or not shown to have been paid and upon no written evidences of title, the said father-in-law never in actual possession of the goods, cannot maintain an action of conversion against the sheriff and the vendors for their action in seizing the goods by writs-of replevin as he has neither sufficient title nor possession.

Appeal by defendants from a judgment of the Municipal Court,. second district, New York city, rendered in favor of plaintiff, it. *733being stipulated that the action against Bernard M. Ewing and others shall abide the result of the action against The H. B. Claflin Company.

Myers, Goldsmith *&*Bronner, for appellants.

Louis Levy, for respondent.

MacLean, J.

One David Garfinkel was a manufacturer of ■clothing in Great Jones street, on the 19th of July, 1898. On that day and there, a lawyer called upon him, told him he knew he was about to fail, and insisted upon the return of cloths recently delivered by one client, amounting to $400, and by another, amounting to between $1,100 and $1,200. After some denials and parleying, Garfinkel agreed to return the goods of the first client and to return the unused goods of the second client, ■with the note of his wife, indorsed by himself, for the balance. When the lawyer returned for the goods later in the day, he met one Louis Gordon, who said he was a relative of Garfinkel, and refused to let the goods go, but when the sheriff appeared in answer to a telephone call, with writs of replevin, it was agreed that the replevin suits should be discontinued, and that the first arrangement would be carried out. It was between 5 and 6 o’clock when the lawyer left; quite a stock of merchandise was on hand, manufactured goods and cloth, cut and uncut; cutters were working, men were working, and Garfinkel himself was at work. Between 8 and 8:30 the next morning, the lawyer was brought back on information from the person whom he left in charge of the goods, that the place was being cleaned out. • He found nothing but the shelves. Detectives discovered the goods at Coney Island, in a place called by the police the “ House of all Rations.” There the lawyer referred to above, saw the goods of his clients already taken out of the cases, and had the arrangement of the day before finally carried out. There also the representatives of the merchants, above named as defendants, found and identified the goods, still uncut, delivered by their respective houses to Garfinkel, one lot within a week, the other within a fortnight previously, which goods, the subject of these actions, thereupon were taken by the sheriff of Kings county under requisitions in replevin. Upon such taking as a conversion the present actions are based.

*734In explanation of the removal of the goods, woolen goods of various kinds, to Coney Island in midsummer, Gordon testified: that he was engaged in real estate at 159 Canal street, and was not a dealer in cloths or clothing; that his father-in-law, Solomon Reitman, the plaintiff above named, lived with him; that on the 19th of July Garfinkel sent to him and explained to him the circumstances that a man wanted to take goods that did not belong to him at all; and so Gordon bought the goods, as he said, paying therefor $1,500,— $500 by an old account, and $1,000 -by check, although Gordon said elsewhere that he could not write at all; that as he did not want to store the goods bought of Garfinkel, he sold a part of them to his father-in-law — about seven cases, for $750 — had them addressed by the expressman and sent them, paying the expressman $12 for the transportation, to Coney Island, where Solomon Reitman had no place of any kind, but where his son, William, was a tailor. Thus it was apparent that the professed transfer to Gordon of the merchandise belonging to the clients of the lawyer who called upon Garfinkel, was made with the intent to hinder and delay these creditors of Garfinkel, and was, therefore, void as against them. The transfer of the goods which were of the persons named above as defendants with the sheriff, was similarly objectionable. The very circumstance which Gordon said induced the transfer to him, the nocturnal removal of the goods from the city to the seashore summer resort, the improbable reason given for so doing, the nonproduction of bills, aside from the circumstances shown in the evidence on the part of the defendants, indicate that as to these goods, also, Gordon was a party to a transfer of property with intent to hinder, delay or defraud creditorsw The title and appearance of title set up for Reitman is quite as scanty as that of Gordon. He neither presented himself to the court, nor was any bill of sale presented for him; he never saw the goods, nor knew of or had a memorandum of the contents of the cases; he lived in the same house with Gordon, who, in this, acted for him, and who gave as the reason for going to the Reitmans, that he had to please them. Clearly, the plaintiff had not the concurrent rights of title and of possession necessary to the maintenance of these actions.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Leventritt, J., concurs.

*735Freedman, P. J. (concurring).

The plaintiff in this action claims to be the owner of certain personal property, by a purchase from his son-in-law, one Louis Gordon, who claims to have purchased the same property from one Garfinkel. The goods in question were taken under replevin process, by the sheriff of Kings county, issued upon complaint of several creditors of Garfinkel, and plaintiff sues the sheriff and such creditors for conversion. The plaintiff was not sworn on behalf of the plaintiff. The relationship of the plaintiff to Gordon, and Gordon’s friendship and close intimacy with Garfinkel, together with all the other facts and circumstances as disclosed by the testimony and referred to in the opinion of Mr. Justice MacLean, clearly indicate a scheme on the part of Garfinkel, aided and assisted by Gordon and the plaintiff, with full knowledge on their part, to delay, hinder and defraud his creditors. The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event. .

Judgment reversed and new trial ordered, with costs to appellants to abide event.