Majority
p. 673Joseph Pool as Assignee, etc., Resp’t, v. Edward H. Harris et al., Appl’ts. (City Court of New York, General Term, Filed November 25, 1887.)
Headnote
Trial practice—Direction of verdict—Weight of evidence.The question involved in a certain action was whether an assignment was fraudulent as to certain creditors. The evidence adduced in support of the assignment was given by witnesses interested in sustaining it. Held, that their evidence was not conclusive. That it was error to direct a verdict.
Appeal from judgment entered upon the direction of the trial judge in favor of plaintiff.
This action was begun October 16, 1884, by Hiram Pool, as plaintiff, against one Vandewater. It was claimed by the plaintiff that the firm of Nichols & Co. had, from time to time, borrowed money from him, and they in return had assigned to him, as collateral security for such loans, various hook acounts owing that firm. Among the acounts so assigned was one against said Vandewater. But it appears that on September 4, 1884, the defendants Harris, to whom. Nichols & Co. were indebted, had attached the amount owing Nichols & Co. by Vandewater, and obtained judgment in their attachment suit for a large sum against Nichols &, Co. on November 21, 1884. Vandewater acknowledged his indebtedness to Nichols & Co. in the sum ■of sixty-four dollars, and he was permitted to deposit that sum into court and interplead the present defendants.
Hiram Pool failed and made a general assignment to Joseph Pool, the present plaintiff. On the trial, after plaintiff had rested his case, the defendants moved for a ■direction, which was denied. They thereupon asked to go to the jury upon the entire case, which was also denied. The court then directed a verdict in plaintiff’s favor. The defendants appeal.
Saunders, Webb & Worcester, for app’lt; Harwood R. Pool, for resp’t; Thos. F. Wentworth, of counsel.
—The question whether the transfer from Nichols & Co. was fraudulent as to the creditors of the assignors, was one of fact for the jury. The defendants were both attaching and judgment creditors, and had a right to assail the assignment by every legal method of attack. The evidence adduced in support of the assignment was clearly sufficient to warrant a verdict, but the witnesses were more or less interested in sustaining it, and their evidence is, therefore, not conclusive. Kavanagh v. Wilson, 70 N. Y., 177 . Besides, the testimony is of such a character that the jury might well doubt the bona fides of
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the transfer and find accordingly. It is trac the defendants requested the court to direct a verdict in their favor, but when the court denied their application, they asked to go to the jury on the facts. This request the trial judge refused to grant, and directed a verdict in favor of the plaintiff. This was error, for which the judgment must be reversed and a new trial granted, with costs to abide the event.
McAdam, C. J., concurs.