Klingenstein v. Belsinger

The complaint alleges that, on November 25, 1896, and at the time of the commencement of this action, the plaintiffs were the owners of and en&tled to possession of certain goods and chattels, valued at $795.46, .which goods were in the possession and under the control of Sheriff Tamsen, who claimed the right to hold said chattels as the chattels of J. & J. Schoenfeld, against whom he held séveral executions in favor of Philip Belsinger and other persons. Subsequently by consent the above defendants were substituted as defendants in the action in place of the sheriff. The answer denies that plaintiffs are the owners of said goods and alleges that J. & J. Schoenfeld were such owners at the time mentioned, and that the levy of the sheriff was rightful.

Upon the trial one of the plaintiffs testified that their firm sold and delivered the goods claimed to the Schoenfelds. No attempt was made by plaintiffs to prove that such sale was induced by any false or fraudulent statement made by said Schoenfelds; upon the contrary, it appears that such sale was willingly made. It was *805certainly the duty of the plaintiffs to prove ownership of these chattels. As above stated, it appears from their own testimony that they did not own them and were not entitled to their return or possession, but that the Schoenfelds were the lawful owners, and, therefore, the levy of the sheriff made by virtue of the executions mentioned was rightful, and defendants’ motion to dismiss the complaint should have been granted.

Oonlan and O’Dwyer, JJ., concur.

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