Prentiss Tool & Supply Co. v. Schirmer — 17 N.Y.S. 662

Majority

p. 662

Prentiss Tool & Supply Co. v. Schirmer, Sheriff.

(Supreme Court, General Term, Second Department.

February 8, 1892.)

Headnote

1. Fraudulent Conveyance—Weight of Evidence—Questions of Law.

A mere charge of fraud in the execution of a bill of sale, though a question of fact, will not of itself entitle a party to go to the jury, it being the duty of the court to determine whether there be legal evidence of sufficient weight to justify a submission to the jury.

8. Same—Bill of Sale—Mortgage—“Security for Debt.”

Where a bill of sale was executed in payment of a precedent debt, the mere admission of the vendee, drawn from him by leading questions on cross-examination that the same was a “security for a debt, ” is not sufficient to fix the character of such instrument as a mortgage.

Appeal from circuit court, Westchester county.

Action by the Prentiss Tool & Supply Company against Frank G. Schirmer, sheriff, for the conversion of certain goods levied on as the property of Cora E. Florance, claimed by plaintiff under a bill of sale from her, though there was never any transfer of possession. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before Barnard, P. J., and Pratt, J.

p. 663

William Romer, (Ralph E. Prime, of counsel,) for appellant. John M. Perry, for respondent.

There was no error of law committed upon the trial. It does not follow that, because one party makes a charge of fraud against another, there must be a question for a jury. Fraud is a question of fact; but to go before the jury there must be legal evidence, and whether such evidence exists, and, if it does, whether of sufficient weight to sustain a verdict, is a question for the court. The court below propeily refused to submit the question to the jury. There is no foundation for the claim that the instrument was a mortgage. The goods were sold to pay a precedent debt, and it was not difficult for counsel, but putting the words into the mouth of the witness, to get him to say he received them as “security for á debt.” There was no possibility of a surplus. The transaction was a sale, and not a mortgage.

Judgment affirmed, with costs.