Woodman v. Penfield — 25 N.Y. St. Rep. 297

Majority

p. 297

Maria E. Woodman, Resp’t, v. Thomas D. Penfield, Sheriff, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 20, 1889.)

Headnote

1. Reference—Findings.

Where the referee has properly found adversely to the defendant upon the only question involved in the case, a refusal by him to find other facts as requested by the defendant, although such requests are sustained by the evidence, is not harmful and will "not furnish a ground for reversal.

2. Evidence—Memoranda.

A witness was allowed to testify that an inventory made by him, when a transfer of property took place was correct, and such inventory was admitted in evidence. Held, no error.

S. Same—Fraud—Intent.

Where the good faith of a transfer is in question the parties to such transfer may be allowed to testify that they had no intent to hinder, delay or defraud creditors.

4. Husband and wife—Contracts between.

A transfer of property between a husband and wife is valid and will be upheld when made in good faith and founded upon a sufficient consideration.

Appeal from a judgment for $1,328.72 in favor of the plaintiff against the defendant, entered in the office of the clerk of Oneida county April 29, 1887, on the report of a referee.

J. S. Baker, for app’lt; H. S. Bedell, for resp't.

This action was for the conversion of a quantity of cigars to which the plaintiff claimed title. The defendant sold them under and by virtue of two executions issued upon judgments against the plaintiff’s husband. The defendant sought to justify such sale on the ground that the property in question was transferred by the plaintiff’s husband to her with an intent to defraud his creditors, and that such transfer was therefore void as to them. The only question litigated on the trial, except the value of the property sold, was the validity of the plaintiff’s title.

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The referee found that the plaintiff was the sole owner and entitled to the possession of the property; that it was unlawfully taken by the defendant and converted to his own use; that it was of the value of $969.35; and he awarded the plaintiff judgment for that sum, together with interest and costs. The referee expressly declined to find that the transfer to the plaintiff was voluntary or without consideration, or that it was made with an intent to hinder, delay or defraud the creditors of her husband.

The conclusions of the referee as to the facts, as indicated both by his findings and his refusals to find, seem to be fairly justified by the evidence. The question whether such transfer was fraudulent as to the creditors of the plaintiff’s husband was a question of fact, and as the findings of the referee were sustained by the evidence, we do not think his findings should be disturbed.

But the defendant contends that the referee erred in refusing several of his requests to find, which he claims were sustained by the evidence. If we were to assume that some of the requests proffered were sustained by the evidence and not found, still, as the referee has properly found adversely to the defendant upon the only question involved in the case, it can hardly be said that his refusal to find those requests was harmful to the defendant. Such findings would not have changed the result, and would have in no way aided the defendant, so long as it was properly found that the plaintiff was the owner of the property, and there was an express refusal to find that the conveyance was fraudulent or made with a fraudulent intent or purpose.

While exceptions to alleged findings of fact when they are unsupported by evidence, and to requests to find when they are established by undisputed proof, present questions of law, and are reviewable on appeal (Bedlow v. N. Y. Floating Dry Dock Co., 19 N. E. Rep., 800 -802; Bullock v. Bemis, 20 N. Y. State Rep., 836), still, the refusal of a referee to respond to a request to find is not a ground for reversal, unless such refusal was prejudicial to the appellant. Matter of Hicks, 14 N. Y. State Rep., 320. We think the referee committed no error in refusing to find as requested by the defendant, which would justify an interference with the plaintiffs’ judgment.

The defendant also contends that the referee erred in permitting the witness Swartfiguer to testify that an inventory made by him, when the property in question was transferred, was correct and in admitting it in evidence under defendant’s objection and exception.

In Howard v. McDonough ( 77 N. Y., 592 ), which was an action for the conversion of a stock of goods consisting of many items, where a witness had made a memorandum of the items and their value, and he was permitted to use the memorandum in testifying, and it was received in evidence, it was held that the court might, in its discretion, require the witness to testify to each item separately, or it might allow the witness to testify quite generally to the items and

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their values, and receive the memoranda as the detailed result of his examination, leaving the adverse party to a more minute cross-examination.. 8ee McCormick v. Pa. Cent. R. R. Co., 49 N. Y., 304 -316. We think the principle of these cases sustains the rulings complained of.

A further claim made by the defendant is, that the court erred in admitting in evidence the bill of sale made by the plaintiff’s husband to her. This claim is based upon the theory that a contract between a husband and wife is void. This claim cannot be sustained. It must, we think, be regarded as settled in this state that such a transfer is valid and will be upheld when made in good faith and founded upon a sufficient consideration. Woodworth v. Sweet, 51 N. Y., 8 ; Benedict v. Driggs, 34 Hun, 94 , and cases cited in opinion.

The referee committed no error in permitting the plaintiff and her husband to testify that they had no intent to hinder, delay or defraud his creditors when the sale and transfer to the plaintiff was made. Seymour v. Wilson, 14 N. Y., 567 ; Cortland County v. Herkimer County, 44 N. Y., 22 .

We have examined the other questions presented by the defendant’s brief, and find none that disclose error in the trial, or that seem to require special consideration.

Judgment affirmed, with costs.

Hardin, P. J., and Her win, J., concur.