Mathews v. Poultney

33 Barb. 127 | N.Y. Sup. Ct. | 1860

By the Court,

Gould, J.

It has certainly not been held to be the law of this state, that the failure to attach, to a general assignment, a schedule of either property or debts, makes the assignment void. And even the act of 1860, (Sess. Latos 1860, p. 594,) relative to such assignments, has no such provision; while it does provide for the making of both of such schedules after the making of the assignment,

Mor has it ever been held that an assignee, by his bare, unauthorized act of selling on credit a part of the assigned property, can make void an assignment which was valid when made. The only intent that has anything to do with the validity of an assignment, is the intent of the assignor at the time of making it; the intent with which, or to carry out which, it was made. (24 Barb. 105.)

Taking possession of the assigned property, an actual and continued change of the possession, and all analogous facts, are but facts, the absence «of which shows or tends to show a fraudulent intent in the making of the assignment. And the evidence as to such facts, like that which may be offered as to facts prior to, and immediately connected with, the making of the assignment, is left, for both its credibility and its weight, to the tribunal (whether judge or jury) which tries the questions of fact. And while this court, on review, may, and should, set aside a finding of fact, if it be plainly against the weight of evidence; it certainly should not go beyond that point, to interfere with decisions of fact fairly deducible from conflicting testimony.

I conceive that the conclusions of fact, at which the judge arrived, in his decision of this case at the circuit, are fully covered by this principle; and do not see that we have a right, on those grounds, (as claimed by the plaintiffs,) to reverse his judgment.

There remains, of the plaintiff’s case on the appeal, but the rulings as to admitting or rejecting evidence. And these rulings were mostly as to admitting proof of facts bearing on the question of fraudulent intent $ or as to the direct proof, by the party, of his actual intentthough a part of them were in mere reply to what the plaintiffs had proved. The assignor’s testimony as to his actual intent was proper. (14 N. Y. Rep. 567.) Some stress was laid upon the objection to the evidence showing why the amount (preferred) of the debt to the assignor’s father was not inserted in the assignment. If the fact, that that amount was not stated, was of any consequence, the proof was pertinent. If it was of no consequence, the testimony did no harm. And the same is true of several other objections. It is possible that the question whether the assignor’s father was liable for the rent of the store, (as the lease may have been in writing,) was improperly admitted. But I see no possible harm to result therefrom to the plaintiff; and I do not think that a sufficient reason for reversing the judgment.

[Albany General Term, September 3, 1860.

Gould, Hogeboom and Peckham, Justices.]

I think the judgment should be affirmed.

Judgment affirmed.