Eckhardt v. Epstein — 58 N.Y. Super. Ct. 288

Majority

p. 288

MARTIN ECKHARDT, Respondent v. SIMON EPSTEIN, et al., Appellants.

Headnote

Action to recover the possession of personal property purchased from the assignors of plaintiff under fraudulent representations.—Referee, his findings of fact must be sustained by the evidence.

The appeal in this ease turns upon the question whether there is sufficient evidence to sustain the findings of fact made by the referee. Held, that the record shows that there is sufficient evidence to sustain the same. The evidence was capable of the construction which the referee placed 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 reached 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 saw the witnesses on the stand and was able to ■ notice their manner in giving their testimony, and better able to reach correct conclusions and construction upon the same.

Before Fkeedman and Teuax, JJ.

Decided November 3, 1890.

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

S. F. Kneeland and David Devenir ill, for appellants.

Abram Fling, for respondent.

This action was brought by the plaintiff as assignee of Eckhardt & Co., G. Henshaw & Sons, and Charles F. Phillips, creditors of the firm of Simon Epstein & Son, to recover the possession of certain goods and chattels purchased from the assignors by the firm of S. Epstein & Son under fraudulent representations. Prior to the com

p. 289

mencement 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 & Co. 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 was capable of the 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., concurred.