On appeal from a judgment of the District Court of the First Judicial District of the county of Hudson, entered in favor of defendants in replevin. Reversed.
For the appellant, Allian & Tegrarian (George J. Kaplan, of counsel).
For the appellees, Benjamin Nessanbaum.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. On February 14th, 1933, plaintiff recovered a judgment against defendant Jacob Zeidman for $172.45 damages and $12.90 costs. Execution issued. A levy was made upon certain articles which are the subject-matter of this replevin suit and which belonged to the defendant Jacob Zeidman and one, Aaron Weidenbaum. Under the levy sale was advertised to be held on May 20th, 1933, to satisfy the sum of $197.45, total amount of judgment and costs. On that day Nelson H. Tegrarian, plaintiff's attorney, and Jacob Zeidman, the judgment debtor, met at the office of Andrew J. Markey, Zeidman's attorney, where Tegrarian received from Zeidman $40 in cash and three promissory notes of $50 each, payable one, two and three months after date (which the defendant Zeidman says were accepted in satisfaction of said judgment). Upon receiving the aforesaid cash and notes, Tegrarian gave to Zeidman the following paper-writing, marked Exhibit D-1:
Received from J. Zeidman Forty Dollars in cash and 3 notes dated May 20, 1933, payable one, two and three months after date in the sum of Fifty Dollars each with interest. The payments being in full satisfaction of the case of Union City Cleaners & Dyers, v. Jacob Zeidman.
Union City District Court.
NELSON H. TEGRARIAN, Attorney for Union City Cleaners & Dyers, Inc."
Tegrarian testified that he delivered this paper-writing to Mr. Markey to be held in escrow by him until the notes were fully paid and satisfied and that in the meantime the sale was to be postponed indefinitely. On cross-examination he denied that he so testified with certainty. Markey, however, denied that such was the fact or understanding. He testified that Tegrarian, upon receiving the cash and notes, signed the paper-writing and after delivering it to Zeidman said: "Now, if you don't pay these notes, I will sue you on them," and that Zeidman put the paper in his pocket. The testimony of Zeidman is to like effect.
The first note became due on June 20th, 1933, and not being paid on that day Tegrarian demanded payment of the entire sum because of such default, notwithstanding that the remaining notes were not yet then due. Such payment being refused, Tegrarian then caused the goods and chattels originally levied upon to be readvertised for sale under the aforesaid judgment and sold them to plaintiff for $50. After the sale Zeidman requested a return of the notes of Tegrarian and the latter gave them to him. Henry Brenwasser, an attache of the court, corroborated the demand for and the return of the notes. On ...