On appeal from the District Court of the city of Perth Amboy.
For the appellant, Emil Stremlau.
For the appellee, Matthew F. Melko.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is an appeal by the plaintiff from a judgment entered in the District Court of the city of Perth Amboy, in favor of the defendant.
The facts, as contained in the state of case, disclose that this action was brought by the plaintiff to recover damages from the defendant for the wrongful removal of a heating system in a building upon which he, the plaintiff, at the time of the removal, had a mechanics' lien for lumber furnished for the erection of the building in which the heating fixtures were attached and of which building plaintiff subsequently became the owner.
The evidence shows that the plaintiff had sold to Anton J. Bubenheimer and his wife, lumber material for the erection of a building. In this building the defendant furnished and installed the heating system. Upon completion of the building the plaintiff was not paid and on May 20th, 1932, filed a mechanics' lien claim pursuant to the statute in such case
made and provided. On July 15th, 1932, a judgment was entered in favor of the plaintiff by virtue of the suit on the mechanics' lien claim. Execution was issued under such judgment and on September 21st, 1932, the premises were sold by the sheriff to the plaintiff.
On a date subsequent to the filing of the lien claim, but prior to the entry of final judgment on such claim, the defendant sent a constable to the home of Bubenheimer with instructions to remove the heating system and boiler. The constable complied with the instructions, and did remove the boiler and other parts of the heating system. Upon defendant's refusal to return the fixtures which had already been installed in the premises at the time they were removed, this suit was instituted.
There is a conflict of testimony as to whether Bubenheimer gave permission to the defendant, or its agents, to remove the fixtures in question. Mr. Bubenheimer testified that when defendant's employes came to his home, on July 6th, 1932, with a truck to remove the heating system, he refused to give permission; that on the day following while he was away from home the defendant's employes with one, John Kisides, a constable, came to his home and removed the heating system and that he returned home just as the boiler was being placed on the truck and that he demanded a receipt from the constable for the goods taken. Opposed to this was the testimony of Mr. Sokolav, president of defendant company, who testified, as did likewise the constable, that they had Bubenheimer's consent to remove the fixtures.
There is no specific finding of fact by the trial judge on this conflicting testimony. Under such circumstances this court is not called upon to weight the sufficiency on the testimony. McBride v. Rogers, 83 N.J.L. 407. On conflicting evidence the appellate court will assume a finding of fact that will support the judgment below. Steinmeyer v. Phenix Cheese Co., 91 Id. 351. In the present case it was clearly open to the trial judge to find that Bubenheimer had given ...