Eckhardt v. Epstein — 33 N.Y. St. Rep. 806

Majority

p. 806

Martin Eckhardt, Resp’t, v. Simon Epstein et al., App’lts.

(New York Superior Court,

General Term,

Filed November 3, 1890.)

Headnote

Replevin—Fbaududbnt representations—Bona fide purchaser.

In an action to replevin goods alleged to have been purchased through fraudulent representations, the referee found, on sufficient evidence, that H. B. Claflin & Co. were not innocent bona fide purchasers thereof from the firm to which plaintiff’s assignors sold the goods, but obtained possession with full knowledge of the insolvency of the firm and with intent to aid in defrauding their creditors. Defendants gave no evidence. Held, that the judgment in favor of plaintiff would not be disturbed.

Appeal from judgment entered in favor of the plaintiff upon the report of a referee.

S. F. Fneeland and David Leventriti, for app’lts; Abram Fling, for resp’t.

This action was brought by the plaintiff, as assignee of Eckhardt & Go., Gr. Henshaw & Sons and Charles F. Phillips, creditors of the firm of Simon Epstein & Son, to recover the possession of certain goods and chattels jiurchased from the assignors by the firm of S. Epstein & Son, under fraudulent representations. Prior to the commencement of this action the purchasers, S. Epstein & Son, transferred their entire stock of goods on hand, including the goods in question, together with their book accounts, to H. B. Claflin & Go. for an alleged consideration, a great part of which, as found by the referee, consisted of an alleged antecedent indebtedness which was in part fictitious.

The referee found, in substance, that H. B. Claflin & Co. were not innocent bona fide purchasers, but did obtain possession of the goods with full knowledge of the insolvency of S. Epstein & Son, and with the intent of aiding and assisting them in hindering, delaying and defrauding their creditors and plaintiff’s assignors in this action.

The record discloses no error in the admission of evidence constituting ground for reversal, and the conclusions of law found by the referee follow from the facts as found by him. The appeal, therefore, turns upon the question whether there is sufficient evidence to sustain the findings of fact made by the referee. The record shows that there is. The defendants gave no testimony whatever, and rested their case upon the evidence adduced by and on behalf of the plaintiff. That evidence wras capable of the

p. 807

construction which the referee put upon it, and upon the whole case we cannot say that the preponderance of the evidence is the other way. For these reasons a reversal cannot be had on the sole ground that we might have arrived at different conclusions if the issues had been submitted to us as trial judges in the first instance upon the evidence disclosed by the record. The referee possessed the advantage of seeing the witnesses upon the stand and noticing the manner in which they gave their testimony.

The judgment should be affirmed, with costs.

Tbuax, J., concurs.