EXCEPTION TO EVIDENCE ADMITTED IS NOT AVAILABLE ON APPEAL, where no objection is made until after its admission, and no motion is made to strike it out.

EVIDENCE OF PLAINTIFF'S RECEIPTS AND DISBURSEMENTS FOR TWO WEEKS prior to the taking and carrying away of his property, as alleged in his complaint, is properly admitted for the purpose of determining the amount of his damages, where the complaint alleges that the taking of the property broke up, injured, and destroyed his business. EVIDENCE OF PRICE PAID FOR PROPERTY WITHIN THREE WEEKS before the taking of it is admissible for the purpose of proving its value at the time of the taking, where there is no pretense that it has changed in value during that time.

WITNESS IS COMPETENT TO EXPRESS His Judgment as to Value OF PROP

ERTY, where he testifies that he is familiar with such property, that he has bought and sold property of that grade, and for eight years has been engaged in a business in which such property is bought and sold. REFUSAL TO GIVE CHARGE WHICH IS INCOMPLETE, AND, AS IT STANDS, MEANINGLESS, is not error.

CHATTEL MORTGAGE IS VITIATED BY AGREEMENT THAT MORTGAGOR MAY SELL the property mortgaged, and apply the proceeds to other purposes than the mortgage debt, and not by the fact that such sale has been made.

ACTION to recover the value of property unlawfully taken, and damages for the taking. The opinion states the case. Henry Daily, Jr., for the appellant.

Richard L. Sweezy, for the respondent.

HAIGHT, J. This action was brought to recover the value of certain personal property, consisting of bar-fixtures, gasfixtures, water-fixtures, pumps, counters, tables, chairs, glassware, 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 upon the nineteenth 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; and 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 and took and carried away the property in controversy. It further appears that on the first 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.

Upon the trial the plaintiff claimed that the mortgage was fraudulent and void for the reasons,-1. That Von Rauscher, the mortgagor, at the time it was executed was an infant under the age of twenty-one years; and 2. 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 Southard v. Benner, 72 N. Y. 424, it was held that if, at the time of the execution of a chattel mortgage upon the 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 parol, 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 Id. 591, 97 Am. Dec. 755, 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 parol, or inferred from the fact 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 suf fered 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 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. Tenny, 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 Tenny 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 arti

cles 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 applied 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 case of failure to make such proof. We suppose that the defendant intended to request the court to charge that the plaintiff, in order torecover, 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.

CHATTEL MORTGAGES FRAUDULENT CONVEYANCES. A transfer of property which attempts to secure to the transferrer the use of the property transferred, to the exclusion of creditors or others having claims upon it, i