#### Leonard Hangen, Resp’t, *v.*Christian Hachemeister, App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 18, 1889.)*

1. Chattel mortgage—When void because of right of disposition of property by mortgagor.

In an action brought to recover the value of certain personal property, consisting of bar-fixtures, liquors, etc., alleged to have been wrongfully taken from plaintiff by defendant, the defense was that the property was taken by virtue of a chattel mortgage. After the death of the mortgagor the plaintiff purchased the property at an auction sale conducted by the public administrator. Upon the trial; plaintiff claimed that the mortgage was fraudulent and void, because executed under an agreement that the mortgagor should remain in possession of the property, with a. right to dispose of it for his own benefit and advantage. *Held,*that if the agreement complained of was in fact made, the public administrator had the right to disaffirm and treat as void the mortgage; 1o take possession of the property; to sell it at public auction, and give a good title to the purchaser.

2. Same—Parol evidence—When competent.

*Held,*that the agreement might be proved by paroi, or inferred from the fact that sales of the property were had and permitted by the mortgagee, for the account and benefit of the mortgagor.

3. Same—Conversion—Damages resulting from—How determined— Admissibility of evidence.

It was alleged that the taking of the property destroyed the plaintiff’s-business, brought him into disgrace and injured his reputation and credit, for which he suffered damages, etc. *Held,*that in determining the amount of such damages, to understand the nature and amount of business carried on at the time the property was taken, evidence of the receipts and disbursements for two weeks prior to that time was admissible.

4. Same—Evidence—Competency of.

Evidence tending to show that there was an arrangement between the public administrator and defendant, by which the property was to be sold and proceeds retained, subject to the determination of the question of th& validity of the mortgage, was competent.

5. Same—Opinion of witness—When admissible.

Plaintiff was permitted to testify as to the cost of articles purchased by him from other sources than the administrator, which he claimed were taken by defendant, and also as to the amount that he paid at the administrator’s sale. Held, that inasmuch as it appeared that the property had been purchased within three weeks of tlio time-it was taken, and there was no pretense that it had changed in value during that time; also, that plaintiff was competent to express his judgment as to the value of the property, the evidence was competent.

6. Same—Requests to charge—When properly refused.

Held, that a request to charge that plaintiff must prove that the mortgagor actually sold as his stock in trade, property covered by the mortgage, and applied the money to other purposes than the mortgage debt, in that it does not point out the consequences that would result in case of failure to make such proof, is incomplete and was properly refused.

*527Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict, andan order denying a motion for new trial made upon the minutes.

*Henry Daily, jr.,*for app’lt; *Richard L. Sweezy,*for resp’t.

1

 Affirming 53 Supr. *Ct., 532.*

Haight, J.

This action was brought to recover the value of certain personal property, consisting of bar-fixtures, gas-fixtures, water-fixtures, pumps, counters, tables, chairs, glass-ware, window-shades and other property contained in the saloon at No. 44 Clinton place, in the city of New York, which, it is alleged, was wrongfully and unlawfully taken from the plaintiff by the defendant, carried away and converted to his own use; and also, for damages for breaking up and injuring the plaintiff’s business, reputation and credit.

The defense is that the property was taken by virtue of a chattel mortgage. It appears that in the year 1877, a young man by the name of George A. Von Rauscher was engaged in conducting a saloon, at the place in question, and that upon the 19th day of October, 1877, he died; that the public administrator of the city was appointed the administrator of his estate, and, as such, took possession of his personal property, and thereafter, and on the 27th of October, 1877, sold, at public auction, the furniture, fixtures and appurtenances of the saloon to the plaintiff, for the sum of $483, who thereupon entered into the possession of the place, and continued the business with the property thus purchased; that about the middle of November thereafter, the defendant, who is a member of the firm of George Ringler & Co., entered the premises with a number of men, ana took and carried away the property in controversy.

It further appears, that on the 1st day of November, 1876, Von Rauscher executed to one August Von Rauscher, a chattel mortgage upon the wines, liquors, articles of furniture belonging to him, and all other goods and chattels mentioned in a schedule annexed, that was, at that time, in the saloon at 44 Clinton Place, New York, to secure the payment of a promissory note for $340, payable in one year from date. The mortgage provided that, until default be made in the payment, the mortgagor was to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. The schedule annexed enumerated the chairs, tables, counters, bar fixtures, etc., contained in the saloon, including the stock of wines, ales, liquors and cigars. This mortgage was subsequently assigned to the firm of George Ringler & Co., who were the owners of it at the time the property was taken by the defendant.

*528Upon the trial, the plaintiff claimed that the mortgage was-fraudulent and void, for the reasons first, that Yon Rauscher, the mortgagor, at the time it was executed, was an infant, under the age of twenty-one years; and, second, that it was executed under an agreement that he should continue in the possession of the property, and have the full and free enjoyment of it, with the right to sell and dispose of the wines, ales, liquors and cigars, for his own benefit and advantage, without applying the proceeds upon the mortgage debt.

As to the claim of infancy, the trial court held and decided that it was not established, and only submitted to the jury the question as to whether there was an agreement that the-mortgagor was to have the right to sell and dispose of the-property mentioned, and to retain the proceeds thereof. The jury found a verdict in favor of the • plaintiff for the-value of the property taken, thus finding that such agreement was made.

In the case of *Southhard*v. *Benner*(72 N. Y., 424), it was. held that if at the time of the execution of a chattel mortgage upon a stock of merchandise, it is understood and agreed between the parties, that the mortgagor may sell, the stock and use the proceeds in his business, and the agreement is carried out, the mortgagor making the sales with the knowledge of the mortgagee, the transaction is fraudulent in law as against the creditors of the mortgagor. It. was further held in that case that such an agreement might, be proved by parole, or inferred from the fact that the mortgagee had permitted the sales to be made.

In the case of *Potts*v. *Hart*(99 N. Y., 168), it was held that the mortgage would be void, when it is given with a. tacit understanding that such sales may be made; and in the case of *Russell*v. *Winne*(37 N. Y., 591), it was held that, an agreement that the mortgagor may remain in possession, and sell or dispose of the mortgaged property for his own use, rendered the mortgage fraudulent as to creditors, whether the agreement be contained in the instrument, or was independent of it, and that if it was void as to a part, of the chattels covered by it, it was void as to the whole.

The wines, ales, liquors and cigars constituted the stock of merchandise embraced in the mortgage. The administrator represented the creditors as well as the estate. As-such, he had the right to disaffirm, and treat as void, the mortgage if it was made in fraud of the rights of creditors. It appears that there were other creditors of the deceased, and it is understood that he was insolvent. The administrator, therefore, had the right to take possession of the property, to sell it at public auction and give a good title to-the purchaser, provided the agreement complained of was. in fact made.

As we have seen, the agreement may be a tacit understanding; it may be proved by parole or inferred from the *529fact that the sales were permitted by the mortgagee. The first bit of evidence we have upon the subject appears in the provisions of the mortgage in which it was agreed that the mortgagor should remain and continue in the quiet and peaceable possession of the goods and chattels, and have the full and free enjoyment of the same until default was made in the payment, which was a year from the date of the instrument. There was further evidence to the effect that the mortgagee was a brother of the mortgagor, and that he had loaned the mortgagor the sum of $340, to-enable him to carry on the saloon. The stock in trade consisted of wines, ales, liquors and cigars. The business engaged in consisted of the sale of these commodities, and, if they could not be sold, the mortgagor could not well conduct his business of keeping a saloon. It further appears, from the evidence that the mortgagor did continue the-business of running the saloon down to about the time of his death, conducting it in the usual way. It appears to us that the jury had the right to infer from these facts, that it was mutually understood between the parties that the mortgagor should have the right to sell and dispose of the merchandise embraced in the mortgage, for and on his own account, and that the mortgage was consequently void as. against creditors.

This question was submitted to the jury without exception on the part of the defendant, and we must regard the-parties as concluded by the finding.

Upon the trial, evidence was given tending to show the-plaintiff’s receipts from sales made each day for two weeks-before the property was taken. After the evidence had been taken, the objection was made that there was no claim made for such damages. The objection was overruled and an exception was taken. Evidence was also given showing the expenses each day. The exception is not available-here, for the reason that the objection was not made in time, and there was no motion to strike out the evidence-taken. But such damages were claimed in the complaint. It was alleged that the taking of the property broke up,, injured and destroyed the plaintiff’s business, brought him into disgrace, and injured his business, reputation and credit, for which he suffered damages, etc.

In determining the amount of such damages it was. necessary to understand the nature and amount of business that he was carrying on at the time the property was taken, and the receipts and disbursements for two weeks prior to-that time, does not appear to us to be too remote. *Schile*v. Brockhahus, 80 N. Y., 614.

Evidence was also given tending to show that there was. *530■an arrangement between the administrator and the defendant by which the property was to be sold, and the proceeds retained subject to the determination of the question of the validity of the mortgage. Objection was taken to this evidence, as irrelevant and incompetent. The conversation was with Mr. Tenney, the defendant’s lawyer, the person who had been employed to foreclose the mortgage and take possession of the property. A controversy had arisen between him and the public administrator as to the validity of the mortgage. The objection was not placed upon the ground that Tenney was not authorized to make the arrangement; had it been, evidence to that effect might have been supplied. For this reason, the exception is not well taken.

The plaintiff was permitted to testify as to the cost of articles purchased by him from other sources than the administrator, which he claimed was taken by the defendant, and also as to the amount that he paid for the property taken at the administrator’s sale. The first objection was based upon the ground that it furnished no evidence of the ■actual value, at the time that the'property is alleged to have been taken. It, however, - appeared that the property had been purchased within three weeks of the time that it was-taken, and there is no pretense that it had changed in value during that time. The second objection was based upon the ground that the witness was not an expert as to the value of such property. The court admitted the evidence, but subsequently held that he was not qualified to give an opinion as to the value of the property, upon the ground, that he was not an expert. His evidence was to the effect that he was familiar with such property; that he had bought and sold that grade of property, and had for ■eight years been engaged in the business of keeping a saloon, and in buying and selling fixtures and saloons. It ■appears to us that he was competent to express his judgment as to the value of the property, and we are therefore •of the opinion that the evidence was competent and within the rule stated in the case of *Hoffman*v. *Conner*(76 N. Y., 121-124).

The defendant requested the court to charge that the plaintiff must prove that this mortgagor actually sold, as his stock in trade, property covered by the mortgage, and ap,plied the money to other purposes than the mortgage debt, which was refused.

It .-was the agreement that the mortgagor might sell the ■stock in trade and apply the proceeds to other purposes than the mortgage debt, that vitiated the mortgage, and not the fact that such sale had been made. But the request is incomplete, and, as it stands, is meaningless. It -does not point out the consequences that would result in *531case of failure to make such proof. We suppose that the defendant intended to request the court to charge that the plaintiff, in order to recover, must prove, etc. The proposition was substantially charged, and we do not feel justified in supplying the words necessary to make the exception available.

We have examined the other exceptions appearing in the case, but are of the opinion that they point to no-error.

The judgment should therefore be affirmed, with costs.

All concur.