Fogarty v. Hook

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 in the possession thereof, and the good faith or 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 ; 22 St. Rep. 733 ; Provost v. McEncroe, 102 N. Y. 650 ; Schram v. Werner, 81 Hun, 561 ; 63 St. Rep. 340 . The case stands the same as iif 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.