This appeal is based entirely upon a consideration of the facts, and it is claimed that the evidence introduced upon the trial failed to support the findings of fact of the court below, The action was brought to set aside an assignment made by the defendant James White to the defendant Charles Wise, for the benefit of creditors, In and by said assignment were preferred certain indorsements of the firm of L. & 0. Wise, of which the assignee was a member, and also an indebtedness due by the said James White to the said firm of L. & C. Wise. There were next preferred certain debts of James White to one John Dwyer. It was claimed upon the part of the plaintiffs, who are judgment creditors of James White, that this assignment was made with intent to hinder, delay, and defraud the creditors of Janies White. And it is claimed that the evidence shows that there was a fraudulent concealment of property by James White, and that a fraudulent arrangement was entered into, between the assignor and the assignee, whereby the assignor was to receive certain benefits out of the assigned property. The evidence to establish these propositions was largely circumstantial, and depends upon inferences to be drawn from the acts of the parties in reference to the assigned estate. It is true that, in regard to the arrangement for the benefit of the assignor, the assignor has directly testified to such agreement; but it is apparent, from the nature of the testimony of the assignor, that no reliance whatever can be placed upon any evidence which he gave, unless It
The evidence of the assignor, in reference to his disposition of the $700 worth of goods, which he claims were in his house at the time of tire assignment, and which were never delivered over to the assignee, is of such a character as conclusively proves that any evidence that he might give is totally unreliable. It appears from his testimony that he sold this $700 worth of goods for the purpose of supplying necessaries for his family; that he was in great need of money; that lie sold these goods to various people, all in the city of Brooklyn, but he is not able to name a single person to whom he sold a single article. This story is absolutely incredible, and is undoubtedly false. It is impossible for anybody to place any credit upon a statement so palpably false as this. The fact of the sale of these goods, certainly, was a matter of some importance to the assignor at this time, in view of his alleged necessitous circumstances; and that lie should have sold the whole, without being able to name a single purchaser, and all in Brooklyn, cannot be credited. It is true that he subsequently testified to the fact that he'sent some of these goods to the firm of A. S. Bicharás & Oo but how much, when, or where, is in no way disclosed. The story upon the part of the wife of the assignor, that these goods were retained by her, from time to time, because of her wages, which remained unpaid, is equally incredible. This seems to have been an invention of her own, because, during his examination, the assignor, White, seems to have claimed these goods, and he and his wife do not seem to have been exactly in accord as to the circumstances under which these goods were retained in his house. It is true that it is urged, upon the part of the assignee, that this story is entirely a fabrication, and that no such goods ever exisled; that there were certain .goods, a part of the stock of leather, in the house of the assignor, which the assignee procured, and he then examined, and did not find any other goods there; and such a quantity of goods as testified to by White could not have been there, without his seeing them; and it may be that the existence of these goods was due to the fertile imagination of the assignor If the assignor had these means at his command, why should he be so solicitous, immediately after the assignment, to obtain moneylfrom the assignee. The evidence is beyond dispute that attempts were made, that his necessitous circumstances were pleaded, in order that his old friends L. & C. Wise, who had been the consignees of his goods, should relieve his necessities. It becomes necessary, therefore, in order to sustain this charge of fraud, that we should look to see whether any evidence to show that a fraudulent intent existed upon the part of the assignor can be found from those facts which are established from other sources, without the evidence of the defendant and his wife. It seems to us plainly deducible, from the evidence of the other witnesses in the case, that the defendant White did not intend to part with his property, for the purpose of paying his creditors, without the hope of ultimate reward He believed that he would derive some benefit from the administration of this property, alter the assignment. From what this belief arose, we are not informed, except so far as it supports the statement which was made by White of the agreement between himself and the assignee, as to his future employment. But that such a belief existed, seems to be beyond question established by the evidence of Wise, who states that, in a conversation had shortly alter the assignment, when White was beingshoved aside, that White did not like it at ail, and stated that he did not think the business was to be done in that wray; that he thought he was going to run the factory. It further appears from the evidence of the assignee that, in respect to the horse and the yacht, it was understood between the assignee and White that he should get the yacht and the horse and wagon, and that the assignee told him he would protect him all he could, and that he should have the first chance, provided he paid as much as anybody else. It further appears that
There is another transaction which is attacked by the plaintiffs in this action. It is a sale of a portion of the assigned property to one Hirsch. It is claimed, upon the part of the plaintiff, that the conclusion drawn by the court tiiat this was a sale by the assignee to his own firm, is amply supported by the evidence showing the transaction in al-1 its details. That there was evidence enough to sustain the conclusion of the court in this regard, we cannot doubt. It may be, however, that the conclusion is more strongly established by the failure to prove facts than by the facts established. The circumstances proved were of such a character as necessarily to call upon the defendants for explanation, and satisfactory explanations were not forthcoming, and the absence of such explanations necessarily led to the one result. It appears from the evidence that the assignee’s firm of L. & C. Wise were largely engaged in business, as commission merchants, and that the defendant Leon M. Hirsch was also engaged in business, as a large shoe-dealer, in Grand street. They appear to have been acquainted with each other for a considerable length of time, but it does not appear that they had had any commercial dealings of any magnitude, prior to the one in question. The assignee, being fearful that replevin proceedings would take out of his possession a considerable part of the assigned property, and thereby the chance of his firm getting their preference largely diminished, concluded that it was necessary to get rid of the assigned property in the shortest manner possible, and Hirsch was applied to, for the purpose of carrying out this scheme. After a very superficial examination of the property to be sold, he buys the same, with money borrowed from Leopold Wise, and which appears to have been advanced by the firm of L. & C. Wise to Leopold Wise. This money, or some portions of it, Hirsch claims to have repaid, in bills, no check ever having passed, and no account
Beady, J., concurs. Baetlett, J.} concurs in the result.