Although the appeal from the judgment was first perfected, the Supreme Court had power to amend its record by conforming the order to the fact, and therein stating that its decision was made upon questions of fact, and its determination in that respect is not the subject of review. (Buckingham v. Dickinson,54 N.Y., 682.) We think, however, that the General Term erred in directing judgment in favor of Van Kleeck. It cannot be said that upon a new trial the case would remain unaltered. The facts are not undisputed, and as it does not appear that the respondent is entitled to judgment in his favor, as matter of law, the issues made by the respective parties should have been sent back to the trial court for its determination. (Astor v. L'Amoreux,8 N Y, 107.) It is not sufficient that it is improbable that the defeated party can succeed upon the new trial; it must appear that he certainly cannot, to justify an appellate court in rendering final judgment against him. (Foot v. Ætna Life Ins.Co., 61 N.Y., 571; Arthur v. Griswold, 55 id., 400, 411.) In *Page 184 the very recent case of Ehrichs v. De Mill (75 N.Y., 370), the rule is regarded as well settled, that "where there is an issue upon material facts, which may possibly be decided in more than one way on another trial, there should be a new trial ordered upon the reversal of a judgment by the General Term." In view of this conclusion, I do not intend to review the evidence, or consider its force, but it is proper to call attention to the fact that the statute, as it now stands (§ 5128 U.S.R.S.), requires the assignee in bankruptcy to establish that the person claiming under the assignment which he seeks to avoid, received it not only with "reasonable cause to believe" the assignor "insolvent," but that she received it "knowing that such assignment was made in fraud of the provisions" of the act. Prior to the amendment which introduced these words, it was enough to show that she had "reasonable cause to believe" the assignment was made in fraud of the act. There is a difference in the meaning of the two phrases, and the substitution of one in place of the other, cannot have been made without intending a difference in construction. To "know," is something different from "belief," and we may infer, from the change in phraseology, that the statute imposed a liability only upon proof of that full and perfect assurance which amounts to actual knowledge, and exceeds that degree of information which would warrant belief. Reasonable cause to believe the insolvency of the assignor, may rest upon conjecture, but knowledge of the fraud must be established as a fact. Both may, no doubt, be established by circumstances, but the latter requires more cogent proof than the former.
The judgment of the General Term, so far as it modifies the judgment of the Special Term, is reversed, and a new trial granted, the costs in this court to abide the event.
All concur, except CHURCH, Ch. J., and MILLER, J., absent at argument.
Judgment accordingly. *Page 185