By the Court,
Ingraham, J.This action is brought to set aside an assignment. The ground upon which the plain*553tiffs mainly rely is that the assignment prefers certain persons who had previously signed a composition deed, agreeing' to take fifty cents on the dollar and release the assignors. The judge before whom the case was tried has -found that the composition deed and the assignment were separate and distinct transactions, and were not part of one original plan or agreement; and that neither of said instruments entered into or formed part of, or should be construed with reference to, the other. He also finds that the assignment was not made with intent to hinder, delay or defraud their creditors, or for the use of the assignors, or by collusion. The complaint was dismissed, and the plaintiffs appealed.
There can be no doubt that the judge committed no error as to the law, if he is correct as to the findings of fact, in this case. The assignment, by itself, contains nothing that would render it void. It is a simple assignment for the benefit of creditors, giving preferences, and containing no provisions that the law holds sufficient to vitiate it. The only ground therefore would be to bring it within the case of Spaulding v. Strang, (36 Barb. 310,) in which the assignment was held void, in a similar case, but in which the judge found that the composition deed and the assignment were but one transaction, and were to be construed together. The difficulty in so holding in this case is that the judge before whom the case was tried has found otherwise. The question was one, mainly, of intent; and the testimony submitted to the court on the trial was such as left it to the judge to decide upon it as a matter of fact, so that his finding either way ought not to be reversed on appeal. It may be that the judge before whom this case was tried took a different view of the intent and motives of the parties from the conclusions of the judge in the case of Spaulding v. Strang, and yet it is no ground of appeal, any more than where juries differ as to the facts in cases very similar. It is only where the finding of fact is clearly against the weight of evidence that such findings should be disturbed on appeal. *554A difference of opinion upon the facts, by the appellate court, does not warrant us in reversing the judgment. I do not agree with the plaintiff’s counsel that the evidence is conclusive against the defendants on this point, although I am free to say that from an examination of the evidence I should hesitate about coming to the same conclusion.
This difference of the finding of facts draws the distinction between the present case and that of Spaulding v. Strong, and renders the decision in that, case inapplicable here. There the two instruments were found to be one transaction, to be construed together, and in this case they were found to be separate and distinct, and formed no part of each other. With this finding, we cannot say, as matter of law, that the assignment is void upon its face, or that it is to be declared void for any thing contained in the composition deed which the judge finds is not connected with it and forms no part of it.
The offer to prove what Samuel Graydon said, as to his object in buying up the notes of the assignors, was properly excluded. There was no offer to show that he was acting for them, in the matter, or under agreement with them. It was immaterial whether Samuel bought up the paper with a view of enabling the firm to compromise their debts, if the transaction formed no part of an agreement under which the assignment was executed.
The evidence of threats made by the assignors to their creditors to induce them to sign composition deeds was excluded on the trial, and is sought to be sustained upon the ground that no such charge is made in the complaint. Independent of this objection I should be of the opinion that such evidence was admissible, as tending to connect the composition deed with the assignment, and bearing upon the question whether they were or were not to be considered one instrument. The defendant had a right to know the grounds upon wjiich the plaintiffs sought to set aside the assignment, and if they relied upon such threats, should have made the proper *555allegations in the complaint to warrant the introduction of the testimony. This is the only ground upon which the exclusion of the evidence can be sustained; and upon this point I entertain some doubt, but do not feel warranted on that account to sefj aside the judgment.
[New York General Term, May 4, 1863.Sutherland, Ingraham and Clerke, Justices.]
Judgment affirmed.