(dissenting):
This is a judgment creditor’s action brought to set aside a transfer and mortgage of personal property made by Alums M. Cousins to his brothers, which property was subsequently sold to the respondent, the Consolidated Ice Company. Upon the trial at Special Term the court dismissed the complaint, upon the ground that the plaintiff had not made it appear that the bill of sale and mortgage were made with the intent to hinder, delay or defraud the creditors of Almus M. Cousins, the particular reason being that it had not been shown that the transferee in the bill of sale and the mortgagees in the mortgage were not bona fide «’editors of Almus M. Cousins. To this decision an exception was filed, and after judgment had been entered dismissing the complaint this appeal was brought.
The question presented is purely a question of fact. By section 1022 of the Code of Civil Procedure that question of fact is entirely open for review by the Appellate Division, and the case is to be determined by this court upon an examination of the facts. But while the facts are to be examined by this, court, it is not to be forgotten that the court at the Special Term had the opportunity of seeing the witnesses and of observing the manner in which they gave their testimony, which is of great service in enabling it to decide . *568correctly as to the weight to be given to the testimony of each witness who personally appeared before it. In view of the great advantage thus afforded to the trial court the presumption arises that its decision upon a question of fact is the correct one, and no presumptions are to be indulged in against it, but, on the contrary, if any presumptions are to be made they are to be made in support of the judgment. (Heye v. Tilford, 2 App. Div. 346.) While it is our duty to examine the evidence and form a conclusion for ourselves upon it, yet in such an examination this presumption must not be overlooked. The case was decided at the close of the plaintiff’s evidence. There had been sworn as witnesses for the plaintiff, not only persons who were friendly to it, but also Almus M. Cousins, the judgment debtor, who made the alleged fraudulent transfer, and ■ his brother, Richard Cousins, who received it. The testimony given by these men was to the effect that the transfer to Richard and the mortgage to'John and Harvey were made in payment of a bona fide debt, and if their testimony was. to believed there was no. escape from the conclusion that the assignee and the mortgagees were actual creditors of their brother Almus, and that they were entitled to receive the property from him by reason of the debts which he owed them. It is said by the appellant that the plaintiff is not bound by their testimony, and to that proposition he cites the case of Becker v. Koch (104 N. Y. 394). In that proposition he is correct, but the cases are very rare in which a person who puts a witness upon the stand is bound by his testimony. It is undoubtedly the rule that such a person cannot discredit his witness by impeaching his.character or by proving contradictory statements made by him for the sole purpose of showing that he is unworthy of credit. But he is never . precluded from showing that the facts testified to by his witness are not the true facts of the case, or from establishing the truth of the transaction, however strongly his own witness may have sworn to something which was not the truth. In such a case as this, where the plaintiff has put his adversary upon the stand, he is at liberty, without regard to what his adversary swears, to prove the facts, and he is at ■ liberty to insist that the testimony of his adversary is not true; but he is not at liberty to insist that the court shall not examine the testimony and give it such weight as it ajrpears to be entitled to, and if it believes it, find the *569facts as sworn to by the witness whom the plaintiff has put upon the stand, although that witness is interested against him. It must not be forgotten that in cases like this, where the sole question is one of fact, the plaintiff is not necessarily entitled to that interpretation of testimony "which is most favorable to him. Where the court is called upon to decide a proposition of law, claimed to arise upon a certain set of facts, the person against whom the ruling is asked is entitled to that interpretation of the facts which shall be most favorable to his contention, but where the court is called upon to determine the truth of a question of fact in any stage of the trial, for the purpose of deciding the case, it should examine all the testimony and conclude as to the truth of the fact in precisely the same way as though the case had finally been submitted to it for determination. In considering this case, the serious question to be determined is, whether, upon all the facts, Almus M. Cousins was, at the time of the transfer to his brothers, actually indebted to them as he claimed to be. If he was so-indebted, then, undoubtedly, it was perfectly competent for him to transfer to them a sufficient amount of his property to pay those debts; although he thereby put it out of his power to pay his other creditors; and if his object was only to pay the debts which he actually owed to his brothers, the transaction was not fraudulent as to the other creditors. (Hoffman v. Susemihl, 15 App. Div. 405.) The testimony of Almus M. Cousins and his brother Richard was the only evidence upon that subject given upon the trial. There was at hand the evidence of the brothers John and Harvey, and also of the attorney, Mr. Boynton, who drew the bill of sale and the mortgage. There was no reason why the plaintiff should call these persons, and the defendants had no opportunity to do so because the case was closed before the defendants were put to their proof. For that reason no presumption can arise against either party because these witnesses were'not called. Especially is there no presumption against the defendants that the testimony of these Witnesses would have been adverse to them because they had no opportunity to call them.
It is quite true that the two Cousins were interested in the' result of the suit, and that interest must be taken into consideration. But there was no direct evidence in the case to impeach the testimony *570which they gave as to the consideration for the transfers. It is-claimed, however, by the plaintiff that their testimony should be discredited. It may be conceded that there were some circumstances which would afford ground for suspicion as to the existence of the debts for which these transfers were made. An attempt was-made by the defendants upon the stand to explain these circumstances, and if their statements were true the explanation ivas sufficient. Whether it was to be believed or not depended almost entirely upon the appearance of the witnesses and the manner in which they gave their testimony, and that was before the trial judge,, and his conclusion upon that point is entitled to great weight.
It is said that the transfers were made fraudulent by the provisions of- the Statute of Frauds that “ every sale made by a vendor of' goods and chattels in his possession or under his control by way of mortgage or security, or. upon any condition whatever, unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold,, mortgaged or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor * *• * and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith and without any intent to defraud such creditors.” (2 R. S. 136, § 5.) The rule laid down in this section does not apply to the mortgage given to John and Harvey Cousins, because it appears that that mortgage was properly filed as a chattel mortgage on the day after it was given, and1, therefore, so-far as those persons are concerned, they are not within the condemnation of this statute. But as to Richard Cousins it does appear that the arrangement between him and his brother was that the possession of the property which was sold to -him on the twenty-third of July should not be transferred to him until the first -of August,'and that he did not go into possession of that property until that time. Undoubtedly when that agreement was made to-appear -the presumption of fraud arose, -but it was not necessarily a-conclusive presumption, but the" question still remained whether the sale by his brother to him was made in good faith and without any intent to .defraud the creditors. That "was a fact to be decided upon a consideration of all the testimony which had been given in the *571case, and certainly there was sufficient testimony to warrant the court in holding that the transfer by Almus to his brother was made upon sufficient consideration, and was made for no other reason than to pay the debt which Almus owed.- Of course, there is testimony-tending to support the presumption of fraud, but the question is a-question of fact, and if the testimony of the two defendants Richard and Almus is to be believed, the delivery of possession was postponed for a sufficient reason, so that the presumption of fraud is repelled.
It is not necessary to recite the testimony by which we are brought to the conclusion thus announced. To do so would extend this opinion to too'great a length. It is only necessary for us to say that upon a careful reading of the testimony we are of the opinion that the finding of the court at the Special Term was not unwarranted by the evidence, and that the plaintiff failed in its effort to prove that the transfer was made with the intent to defraud creditors, and for that reason the judgment must be affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.