Hyperlawhypertext legal database Fogarty v. Hook 32 N.Y.S. 555

← Cases

Fogarty v. Hook

32 N.Y.S. 555 Court N.Y. Gen. Term Decision date 1895-02-12 English

Delivered by PUTNAM, J.

Contents

Majority

p. 555
(84 Hun, 165.)
FOGARTY v. HOOK et al.
(Supreme Court, General Term, Third Department
February 12, 1895.)

Headnote

Trial—Request to Direct Verdict.
A request by both parties' tor a direction of a verdict authorizes the
court to find on the questions of fact.
Appeal from circuit court, Fulton county.
Action by Patrick Fogarty against Adam Hook and another for conversion. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Andrew J. Nellis (Borden J. Smith, of counsel), for appellants.
Clarence W. Smith, for respondent.

A careful reading and consideration of the evidence in the case has satisfied us that a question of fact was presented as to whether the conveyance from Henry B. Noll to the plaintiff, under which the latter claimed title to the property which was the subject of the action, was fraudulent as against the creditors of Noll or otherwise. It cannot be held that the evidence conclusively established the fraudulent nature of the conveyances, as alleged by defendants. It was possible to find from the testimony the payment by plaintiff to Noll of a fair price for the property in question, a change

p. 556
in the possession thereof, and the good faith of the transaction. This question of fact, had either party so requested, it would have been the duty of the trial court to submit to the jury. But both parties requested the court to direct a verdict, and neither asked to go to the jury. It follows that the court was authorized to find upon the questions of fact in the case, and, as there was some evidence to sustain the finding made, it cannot properly be disturbed by us. See Kirtz v. Peck, 113 N. Y. 222 , 21 N. E. 130 ; Provost v. McEncroe, 102 N. Y. 650 , 5 N. E. 795 ; Schram v. Werner, 81 Hun, 561 , 31 N. Y. Supp. 47 . The case stands the same as if it had been submitted to the jury, and a verdict had been rendered for the plaintiff. We conclude that the judgment should be affirmed, with costs. All concur.

Cases cited