38 N.Y.S. 307 | N.Y. App. Div. | 1896
The action is brought to set aside an assignment for the benefit of creditors as fraudulent, and made with the intent to hinder, delay and defraud creditors. The assignor was in business as a retail jeweler in Hew York, and the foundation of the plaintiffs’ claim seems to be the disappearance of 159 articles of jewelry valued at $18,280, which, according to the assignor’s books, should have been in his possession at the time of his failure, but of which there were received by the assignee sixty-one pieces, inventoried at the nominal value of .$l,178.'T5. This discrepancy is claimed to have been shown from an examination of the books only. There was testimony as to the estimates of the condition of the assignor’s stock made by persons visiting his store during a period of three or four months prior to his assignment, but the extent of this stock in his store was explained by the fact that he had on hand for sale a large amount of goods that did not belong to him and which were returned to the owners prior to the assignment. The books were introduced in evidence and two witnesses were examined for the plaintiffs, who testified to an examination of the books and their contents. The trial' justice found as a fact that the assignment was not made with the intent to hinder, delay and defraud creditors, and the only question that is presented is as to the correctness of that finding of fact.
There is no statement in the record that the case as settled contains all the evidence before the court upon the trial; There is .annexed to the case an affidavit .of the plaintiffs’ attorney that “ the
A point is also made by the appellants that the trial judge erred in going outside the record in deciding the case. There is not, however, the slightest evidence presented by the record that the judge considered any fact not in evidence before him. The record shows that the books were in evidence before him. In his opinion he states that the counsel for the defendants analyzed these books ; but a consideration of an analysis of evidence before the courtis not “ going outside of the record.”
The sole foundation for the plaintiffs’ attack upon this assignment is this alleged discrepancy between the stock of goods that should have been on hand according to the assignor’s books and what the assignee received under the assignment, and from that the court is
tively that all of the property that he had in his possession at the time of the assignment was delivered .to the assignee. ■ And various explanations were, given as to this discrepancy appearing on the. books. That question was purely a question of fact for the court, depending entirely upon the correctness of the books, or the analysis of the books made by the plaintiffs’ witnesses, and in the ■ face of the evidence of the .assignor, it was for the trial'court to say Whether the inference .to be drawn from the. books was sufficiently strong to overcome the direct oath of the assignor and thus - prove fraud. Even if we should assume, to pass upon this.question of .fact from this record, we do not think that we woirld be justified in reversing the determination of the."court below oh this question. There is not a .particle of evidence, except this discrepancy before noted, that tends to show in any way that the assignor retained in his possession or under his control any property which should have been delivered to the assignees after the assignment.. And where there is a mere inference to be drawn from books on one side, which is contradicted by the positive oath of . the assignor on the other, a question is clearly presented for the determination of the trial court. Wé, however, affirm this .judgment upon the distinct ground that the record as made up does not present to us the evidence before the trial judge.
The judgment appealed from is,, therefore, affirmed, with costs-.
■ Yan Brúnt, P. J., "Williams, Patterson and O’Brien, JJ., concurred,
judgment affirmed, with costs. .