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Loeschigk v. Peck

26 N.Y. Super. Ct. 700 3 Rob. 700 Court N.Y. Super. Ct. Decision date 1865-03-04 English

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p. 700
William Loeschigk et al. plaintiffs and appellants, vs. Samuel Peck et al. defendants and respondents.

Headnote

1. The rule is well settled that findings of fact by a judge at special term, must be deemed conclusive, unless they are without evidence to support them, or clearly against an overwhelming weight of evidence.
2. In an action to set aside a sale of goods and an assignment by the vendor of promissory notes received therefor, as fraudulent, the solvency of the purchaser, and the fairness of the sale to him, or the credit given, if the evidence is doubtful, are entirely questions of fact.
8. If the general good standing of the purchaser is proved, affirmatively, and no evidence is given to show the length of credit unreasonable, in reference to the particular kind of merchandize, the court is bound to find for the defendants ; and if it do so, it will not be exercising a sound legal discretion by withholding costs from the prevailing party.
(Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
Heard January 10, 1865;
decided March 4, 1865.
This action was brought to set aside an alleged fraudulent sale of goods, and the assignment of certain promissory notes received in payment therefor. The trial of the issues was had
p. 701
before one of the justices of this court at a special term, without a jury, who found in favor of the defendants, and against the several material allegation of the complaint. From this judgment the plaintiffs appealed.
Wm. Watson, for the plaintiffs, appellants.
A. J. Vanderpoel, for the defendant, respondent.

Assuming that the evidence given at the trial is not wholly in support of the several findings of fact, the most that can be urged on behalf of the plaintiffs is, that there was some conflict of testimony, or some basis upon which to have rested an opposite conclusion.

The rule is well settled, that findings of fact by a judge at special term, must be deemed conclusive, unless they are without evidence, or clearly against evidence to support them. (N. Y. Car Oil Co. v. Richmond, 6 Bosw. 213 . Platt v. Thorn, 8 Bosw. 574 . Morris v. The Second Avenue R. R. Co., Id. 679 .)

The solvency of the purchaser of the goods, and the fairness of the sale to him, or the credit given, were solely questions of fact. The former was only assailed by proof of his having allowed accommodation notes to lie over, in order to compel the party accommodated to take them up, and his having given goods as security to take them up ; and his having given goods as security for a loan from a bank, after exhausting the credit it chose to give him without security. His general good standing was proved affirmatively, and no evidence was given to show the length of credit unreasonable in reference to the particular kind of merchandise. Under such circumstances the court was bound to find for the defendants, and doing so it would not have exercised a sound legal discretion had costs been withheld.

The judgment of the special term must be affirmed.

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