38 A.D. 380 | N.Y. App. Div. | 1899
Lead Opinion
I think-that the defendant should have a new trial. Assuming that the bona fides of the debt from her husband to the plaintiff was •conclusively established, this fact alone would not uphold the transfer of the property if it was made with intent to hinder, delay or •defraud creditors. (Billings v. Russell, 101 N. Y. 226.) There was some evidence from which the jury might have found that no change •of possession accompanied the transfer from the husband to the wife, for they were not obliged to believe the testimony of the plaintiff, ■she being an interested party. If the jury found there was no •change of possession the transfer was presumptively fraudulent, and then was presented the further question to be determined by the jury, whether the transfer was made in good faith. I think the learned county judge erred in withdrawing this question from the jury; and I- also think that the defendant’s exception to the action-•of the court in directing a verdict against him is sufficient to raise flie point. However this may be, we have before us an appeal from ithe order denying defendant’s motion for a new trial, and on" that .appeal we can grant a new trial in furtherance of justice, even though there is no exception sufficient to present the question of legal error. I think a new trial is required, for the reason that the .damages awarded are excessive. On the attachment the defendant .seized the plaintiff’s books of account, and- also assumed to levy on .some debts due from third parties to the plaintiff’s husband and
The order denying defendant’s motion for a new trial should be reversed and a new trial granted, on payment by the defendant of the costs and disbursements of the trial.
All concurred, except Goodrich, P. J., who read for modification.
Dissenting Opinion
I cannot agree with the; prevailing opinion of Mr. Justice Cullen for reversal because I am satisfied that we are in a position to do - exact justice between the parties, and that further litigation over a small amount should'be prevented.
The defendant, as sheriff of: the -county of Orange,-in March,'
I do not overlook the contention of the defendant, that there is an estoppel arising from the fact that when the sheriff made his levy the plaintiff asserted a claim only to a stove and two pictures which the sheriff had enumerated in his inventory, which goods were,' therefore, excluded from the levy. There was sufficient evidence to justify the jury in.finding that when the sheriff levied upon the goods, the plaintiff notified him that the business and all the property belonged to her ; in addition to which it appeared that, a few days after the levy, and- before the sale, the plaintiff on two occasions gave the sheriff written notice of her title under, the bill of sale to all the seized property and demanded its return." There could be no estoppel under these circumstances by any failure of the plaintiff to make her claim at the time of the levy, as the sheriff had full notice before the sale of the plaintiff’s title to the property. These facts clearly differentiate the present case from Chapman v. O’Brien (34 N. Y. Super. Ct. 524), cited by the appellant.
But I am inclined to think that the verdict was excessive. One of the plaintiff’s witnesses testified that the value of the goods seized and sold by the sheriff was $285.30, while the plaintiff testified that the value was $388.10. These goods were sold at auction by the sheriff for $73.90, and one of the appraisers appointed by the sheriff fixed the value at $120, but he admitted that he did not know the value of some of the goods. On this evidence the jury would
It is not necessary to decide the question of the right of the sheriff to sell the book accounts, even though they were formally levied on by him under the attachment. He is clearly liable for such collections as were made by him, and these he admits amounted to $77.35. These two sums amounted to $362.65, and I think the judgment should be reversed unless the plaintiff stipulates to reduce the judgment and allowance accordingly.
Order denying defendant’s motion, for a new trial reversed, and new trial granted on payment by the defendant, within twenty days, of the costs and disbursements of the trial, in which case the judgment appealed from is vacated; on failure to comply with the terms aforesaid, judgment and order affirmed, with costs.