Clark v. Exchange Printing Co. — 26 N.Y.S. 401

p. 401

(74 Hun, 71.)

CLARK v. EXCHANGE PRINTING CO. et al.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Conspiracy to Defraud—Evidence—Sufficiency.

Defendant D., manager of the M. Co., which was indebted to defendant A., knowing that his company was insolvent, sold the paper which it had on hand for printing its magazines to A., and bought a new lot from plaintiff. A., shortly after, obtained a judgment against the M. Co., the same attorney acting for both parties, and the paper purchased from plaintiff was seized under execution on the judgment. Held sufficient to show a conspiracy to defraud plaintiff.

Appeal from circuit court, Kings county.

Action by Charles S. Clark against the Exchange Printing Company, Francis E. Fitch, and Alva E. Davis for damages on account of a conspiracy to defraud plaintiff. From a judgment for plaintiff entered on the verdict of a jury, all the defendants appeal; and, from an order a new defendant

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ„

Charles De Hart Brower, for appellant Exchange Printing Co.

Mark D. Wilbur, for appellant Francis E. Fitch.

John Vincent, for appellant Alva E. Davis.

Frederick A. Ward, for respondent.

The plaintiff is a dealer in paper. The defendant printing company printed and published the American Magazine for the American Magazine Company. The defendant Davis was the manager of the American Magazine Company. The defendant Fitch was the manager of the Exchange Printing Company, and made orders for paper, with the assent of the Magazine Publishing Company, which became insolvent, with a large debt due to the defendant printing company. The plaintiff’s case is based upon the allegations that, after the insolvency of the Magazine Publishing Company, the Exchange Printing Company, and Fitch, its manager, and Davis, manager of the bankrupt Magazine Publishing Company,. continued to order and obtain of the plaintiff a large amount of paper, so that the defendant printing company could levy upon it on account of the indebtedness to it from the Magazine Publishing Company. The jury has found that the defendants did this, and returned a verdict for the amount of the property acquired in this way and for this purpose. It was proven that defendant Davis knew of the insolvency of the magazine company when he ordered the paper in question. Fitch knew it. The Exchange Company profited by it. The testimony is quite voluminous, but is sufficient to support the verdict of the jury. The bankrupt magazine sold to the printing company clerks paper obtained for the magazine, and then ordered new paper, which the printing company caused to be seized under execution in its favor: The proceedings to obtain judgment by the printing company were conducted by an attorney common to all the parties and companies. Marks of secrecy, and design to defraud the plaintiff, are visible everywhere. The jury aimed at a proper conclusion upon the facts, and therefore the judgment and order denying new trial should be affirmed, with costs.

DYKMAN, J., concurs.

(concurring.) The charge of the court was as favorable to defendants as the law warranted, and we do not find any errors in the admission of evidence. The verdict of the jury is sustained by the evidence, and there is no ground on which the court should interfere.

The appellants object that the judgment records introduced, not being against these defendants, were improperly admitted. The circuit judge pointed out the grounds on which they were admissible, viz. to show the insolvency of the judgment debtor. If the existence of judgments unsatisfied does not tend to prove insolvency, it is not easy to see how it can be proven.

It is argued that some of the admissions made by individual defendants should have been stricken out. We think the rule of law was satisfied when the jury were charged that the statements of each defendant were evidence only against the party making them. Judgment affirmed, with costs.