The Appellate Division reversed that part of the judgment, rendered by the Special Term, which related to the first cause of action alleged in the complaint, but affirmed as to the part relating to the second cause of action. This appeal was taken from so much of the order as reversed the judgment dismissing the complaint as to the first cause of action.
As the reversal by the Appellate Division was based upon the facts as well as the law, our first duty was to examine the record and see whether there was a material question of fact upon which a reversal as to the facts could be founded. (Otten v.Manhattan Railway Co., 150 N.Y. 395.) After reading the record for that purpose we have reached the conclusion that the circumstances surrounding the actors at the time of the transaction warrant the inference *Page 70 that a preference was intended by the debtor and that the creditor had reasonable cause to believe that the debtor intended to give the preference. There was evidence on both sides of these propositions, which were among the vital questions in the case. Although the witnesses may not contradict each other, admitted circumstances may contradict the witnesses and authorize a conclusion opposed to their testimony, as is frequently the case in trying questions of fraud. The story told by a witness may be truthful upon its face, yet scattered through it there may be circumstances which show that it is false and that the reverse is true. The controverted questions of fact were decided in favor of the defendant by the Special Term and in favor of the plaintiff by the Appellate Division. In civil cases we are restricted to the review of questions of law, and after deciding that the Appellate Division had jurisdiction to reverse because there was a material question of fact, we can proceed no further, but must either affirm the judgment or dismiss the appeal. (Chapman v.Comstock, 134 N.Y. 509; Williams v. D., L. W.R.R. Co.,127 N.Y. 643.) While we have generally dismissed the appeal under such circumstances, we have sometimes affirmed the judgment and we have given repeated warnings that we should do so uniformly if attorneys persisted in wasting time by futile appeals to this court when the reversal was founded on a question of fact. We have jurisdiction to affirm, because we are required to decide the question of law whether the evidence raised a question of fact. Constant disregard of our admonitions makes it necessary to affirm as a rule and dismiss only in rare instances where peculiar circumstances require that course in order to prevent injustice. We apply the rule thus announced to the case in hand by affirming the order of reversal and rendering judgment against the defendant, in accordance with its stipulation, upon the first cause of action set forth in the complaint, with costs in all courts.
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, VANN, CULLEN and WERNER, JJ., concur.
Order affirmed, etc. *Page 71