The only exceptions taken, on behalf of the defendants, which are worthy of any consideration, are those comprised in folios 224, 264, and 265 of the case. ’ [Relative to the declarations of the plaintiff in respect to his poverty at the time when he claimed to have made the loan to Bay Brothers, and the testimony of Vanderbilt, as to his having carted goods for Ray Brothers, just before then-failure.] The defendants, throughout the trial, disputed the genuineness of the alleged indebtedness of Ray Brothers, to the plaintiff. Therefore they had a right to prove that he had made statements which tended to show that he had no money or means, at the time when he said he had made the loan which caused the alleged indebtedness. This, of itself, perhaps, would not have been conclusive. But taken in connection with the evidence, particularly that which was offered subsequently, and also, I think, improperly rejected, enough might have appeared to convince the jury of the spuriousness of the plaintiff's claim; and that it was fabricated merely for the purpose of enabling Bay Brothers to defraud their genuine creditors — the defendants in this case, among the rest.
The defendants proposed by the evidence offered, and which, as I have said, was excluded, to show that Ray Brothers, who had transferred the property in question to satisfy .this alleged debt, had made a fraudulent disposition of other property, just previous to their failure, by storing *409the goods at various places in the city, for the purpose of concealing them from their creditors. Bay Brothers failed early in November, 1860; and not long after their failure (19th November,) they placed these goods in the hands of their brother, E. C. Bay, to hold for the plaintiff, in a warehouse in Liberty street. The plaintiff says he went down to the store, and took possession of them. Afterwards, (February 2, 1861,) the plaintiff received a bill of sale of these goods from the defendants. In my opinion, taking possession of the goods, in November, and the more formal transfer of them in the subsequent February, may be considered as constituting one transaction. So that the transfer of the goods to tjie plaintiff, and any other acts of Bay Brothers, about the time of their failure, may be deemed contemporaneous. Can not these acts be received in evidence as tending to show fraud in the transfer of the property in question ? The acts which the defendants offered to prove are similar to the first step in the transfer in question. They relate to the storage of goods; and, as I have said, they are contemporaneous. The offered testimony presents these two essential elements to entitle it to admission. Can it be received against a transferee or vendee without first impeaching, or at least casting some well grounded suspicion on, his good faith. The principal cases on this subject, in the Court of Appeals, are Hall v. Naylor, (18 N. Y. Rep. 588;). Hennequin v. Naylor, (24 id. 139;) and Hathorne v. Hodges, (28 id. 486.) In the first of these cases, the defendant was the assignee in trust of the alleged fraudulent purchaser, and took the goods for the purpose of applying them to the payment of previous liabilities. He, therefore, could not have been protected against the fraudulent acts of his assignor. Besides, there was testimony tending to show that the defendant was cognizant of the alleged fraudulent design of his assignor, in purchasing the goods from the plaintiff.
*410[New York General Term, November 5, 1866.In Hathorne v. Hodges, although both the judges who delivered opinions made no allusion to the circumstances, there was proof of connivance between the fraudulent purchasers of the shares from the plaintiff. So that I think it is now well established that similar contemporaneous acts, tending to show fraud in the first purchase, may be received at the trial, against a .subsequent vendee or assignee, who either participated in, or was cognizant of, the fraud, or who received the property as security for, or in payment of an antecedent debt.
The goods, in the case before us, it is alleged, were received by the plaintiff as security, in the first instance, and subse-' .quently, in payment of loans of money alleged to Jrave been made at four different times, between May 16, and July 20, 1850; they were put into the hands of Edwin C. Eay, for the security of the plaintiff, as I have already said, about the 19 th of November, 1860; and about the 2d of February, 1861, they were taken by the plaintiff in payment of these alleged loans; and the defendant offered to impugn the genuineness of the alleged debt. The judge, therefore, erred in excluding the questions put to the witnesses Vanderbilt and Holmes, as well as in excluding the evidence offered previously.
The judgment should be reversed, and a new trial ordered; costs to abide the event.
Judgment affirmed.
Ingraham, Clerke and Mullin, Justices.]