Clemmons v. Rouse , 38 N.Y.S. 999 ( 1896 )

Williams, J.:

Upon.the record as presented, there are few questions for üs to> examine. The charge is not before us, and we do not know upon what particular theory the case was submitted to the jury; There was evidence upon which the jury might find that the purchase of the property by the firm from the plaintiff was fraudulent, and that the plaintiff might, therefore, rescind the sale and follow the property and recover it from the defendant, unless he was a" bona fide purchaser thereof' from the firm. (Barnard v. Campbell, 58 N. Y. 73.) There was evidence upon which the jury might find that the defendant was not such bona fide purchaser. We may assume that these questions of fact were properly submitted to the jury. The. defendant raised no objection to such admission, and took no exception to the charge of the court with reference thereto. The two exceptions taken to the exclusion of the evidence offered by the defendant and objected to by plaintiff are without merit. They do not raise the question suggested by counsel in his points, that he was precluded from giving evidence tending to show that the propr erty in suit was hot the same property the plaintiff had sold and delivered to the firm.

The motion for a new trial was properly denied. There was evidence sufficient to sustain the verdict, and the exceptions: taken were without merit.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., Barrett, Bumsey and Patterson, JJ., concurred.

Judgment and order affirmed, with costs.