For the prosecutor, Jacob I. Polkowitz.
For the respondent B.V.D. Sales Corporation, John Fuchs.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This writ brings up for review a judgment, based on a jury verdict, entered in the District Court of New Brunswick, in favor of the judgment creditor, the respondent, and against the claimant, the prosecutor, on a claim of property.
The record discloses the following facts: On July 18th, 1932, the B.V.D. Sales Corporation instituted suit against Joseph Sendar, individually, and trading as Sendar's Men's Shop, in the District Court of New Brunswick, and on August 18th, 1932, recovered a judgment in the sum of $223.97, plus $15.74 costs. Thereafter a writ of execution was issued and levy made on the goods and chattels in question. Subsequently, the prosecutor, Israel Glaser, filed a claim of property. This claim was tried before a jury on October 6th, 1932. The prosecutor, in support of his alleged claim, testified, substantially, that he was the owner of the goods and chattels levied upon, by virtue of a bill of sale, dated July 2d, 1932, from one Louis Daitz, constable and bailiff of the Perth Amboy Beef Company. That the sale conducted by the constable was held under a distress for rent and that the other part of the goods levied upon were purchased by him in the regular course of business.
The bill of sale from Louis Daitz, constable, was produced and introduced in evidence. There was no objection to the introduction of the bill of sale. The constable testified that the sale was held by virtue of the landlord's distraint for rent, and that he received the sum of $300 for the goods sold under the said distraint, and that the goods distrained contained
part of the goods and chattels levied upon. The prosecutor also testified that since the purchase at the constable's sale, he continued as owner of the business formerly conducted by the judgment debtor and that he employed the judgment debtor to manage said business.
The bona fides of this transaction was attacked on the cross-examination of the prosecutor. On this cross-examination the prosecutor admitted that he did not appear at the store until after ten o'clock in the morning; that he had an independent job as a traveling salesman and that on a number of days he did not appear at the store at all. He was unable to give the names of any wholesale supply houses from which merchandise was purchased and admitted that all merchandise needed to conduct the business was purchased by the judgment debtor and was shipped by the supply houses in the name of the judgment debtor. The prosecutor further admitted that he maintained no separate bank account for the business and that replacements of merchandise was paid for cash only and not by his personal check. The prosecutor was unable to give approximations of the merchandise on the shelves at the time of the trial and stated that the proceeds of the daily business done was kept in cash on his person. The prosecutor was unable to produce an insurance policy on the stock of merchandise and fixtures in his name.
The statement of the testimony further discloses that the judgment creditor (respondent) produced no witnesses. The respondent moved to strike from the claim of property any amount in excess of the bill of sale, which motion was granted. The prosecutor moved for a directed verdict, which the court denied and allowed the prosecutor an exception. The court allowed the case to go to the jury on the question as to whether or not, in view of the testimony and conduct of the prosecutor, he was actually the owner of the business, or whether the judgment debtor was, in fact, the owner of the business. The jury returned a verdict in favor of the plaintiff and judgment creditor (respondent) and against the prosecutor.
Two grounds are argued by the prosecutor for the reversal of the judgment. (1) The court erred ...