Citations
- 275 A.D.2d 652
Full opinion text
Per Curiara.
We think that the decision of the trial court was proper and no material error committed in the receipt of evidence. The form of the judgment appears to be substantially correct in view of the failure to demand the return of the chattel in accordance with the provisions of sections 1119 and 1124 of the Civil Practice Act (see Hoffman v. Hoffman, 266 App. Div. 724; Beck v. Schneider, 84 Misc. 23).
The judgment appealed from should be affirmed, with costs to the respondents.
Peck, P. J.
(dissenting). In my opinion defendants’ testimony did not warrant setting aside the bill of sale, which was an unqualified and complete document of sale, and adopting a version of the transaction at variance with the bill. Defendants’ version, if accepted, would not explain the giving of such a bill. If the transaction were as defendants contend, and there was any legitimate tax basis for it, the bill of sale would still have shown the correct price and partial payment rather than be made to appear, what it clearly is on its face, a completed transaction for a total price of $6,000. Defendants’ testimony strongly suggests, at best, an arrangement of false appearances to affect the tax incidents of the sale. I do not think defendants should be permitted to impeach their document in this way. I dissent and vote to modify the judgment to reduce it to the amount of $397.50, with interest and costs.
Glennon, Dore and Callahan, JJ., concur in Per Curiam opinion; Peck, P. J., dissents in opinion in which Shientag, J., concurs.
Judgment affirmed, with costs.