Cullen, J. :
I think-that the defendant should have a new trial. Assuming that the bona fides of the debt from her husband to the plaintiff was •conclusively established, this fact alone would not uphold the transfer of the property if it was made with intent to hinder, delay or •defraud creditors. (Billings v. Russell, 101 N. Y. 226.) There was some evidence from which the jury might have found that no change •of possession accompanied the transfer from the husband to the wife, for they were not obliged to believe the testimony of the plaintiff, ■she being an interested party. If the jury found there was no •change of possession the transfer was presumptively fraudulent, and then was presented the further question to be determined by the jury, whether the transfer was made in good faith. I think the learned county judge erred in withdrawing this question from the jury; and I- also think that the defendant’s exception to the action-•of the court in directing a verdict against him is sufficient to raise flie point. However this may be, we have before us an appeal from ithe order denying defendant’s motion for a new trial, and on" that .appeal we can grant a new trial in furtherance of justice, even though there is no exception sufficient to present the question of legal error. I think a new trial is required, for the reason that the .damages awarded are excessive. On the attachment the defendant .seized the plaintiff’s books of account, and- also assumed to levy on .some debts due from third parties to the plaintiff’s husband and
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assigned to her, or which had accrued to the plaintiff herself in the conduct of the business since the assignment. These book account'son their face amount to over $300. The defendant was able to collect on them $77.35. The action is in form for conversion or trover,, and in submitting to the jury the. amount of the plaintiff’s damages (which was the only question left to them) the county judge treated the action of the sheriff in making his levy as a conversion of the debts or claims, and left the question of their value to the jury. By the price fixed upon the goods attached it is plain that the jury must have allowed the plaintiff between $200 and $300 for these book accounts. I do not understand that there can ordinarily be any conversion of a chose in action, except where it is represented by a written instrument or something that ..is capable of manual seizure or possession, and not even in every case of that character. A promissory note, a railroad bond, a certificate of stock, are doubtless the subjects of conversion, because by their seizure and their .transfer to
bona fide holders for value the owner may lose the thing in action which they represent. But neither the seizure of the plaintiff’s, books-of account, nor any notice served upon her debtors by the sheriff, could in-any manner affect her title to the claims. She could have sued her debtors the next day despite of the levy of the attachment; nor did the. attachment protect her debtors in paying their debts to any one but herself. She has never lost a claim against her debtors. Auto the amount actually collected by the sheriff on these claims, it is pos- 1 sible that he could be compelled to account therefor in this action anyway, it is but fair that he should so account. But beyond the-sum actually , collected he should not be held liable.
The order denying defendant’s motion for a new trial should be reversed and a new trial granted, on payment by the defendant of the costs and disbursements of the trial.
All concurred, except Goodrich, P. J., who read for modification.