Green v. Rosa

Learned, P. J.

The plaintiffs sold goods to one McGovern, about December 12, 1883. Afterwards McGovern made a general assignment to one Hayfinger, January 9,1884. Afterwards creditors of McGovern sued him, and in such suits issued attachments under which the defendant sheriff, &c., by his deputy, seized goods, among them those sold by plaintiffs. Subsequently the plaintiffs commenced this action of replevin, and took the goods; but the same were retaken and retained by giving the usual bond. The ground of plaintiffs’ action, as .stated, is, that the goods were obtained from them by false and fraudulent representations when McGovern was insolvent, with the design of not paying for the sama

To show McGovern’s insolvency at the time of the so-called sale of the goods, plaintiffs gave in evidence his assignment, dated January 9, 1884, and the inventory and schedule dated January 26, 1884, and filed in the county clerk’s office September 27,1884. To this defendant objected. Plaintiffs read therefrom the amount of indebtedness and of property, and also the assignment, to all which defendant objected.

At the conclusion of the charge the defendant asked the ■court to charge that the inventory did not tend to establish. McGovern’s liabilities. The court refused. We think that the-plaintiffs might prove the fact that McGovern made an assignment for the benefit of creditors as tending to show that, at the short time previous, when he bought, he had no • intention of paying, the act of making an assignment, whether he was then really insolvent or not, was a fact which might have some influence in deciding what his intentions were when he bought, just as if he had sold all his property to any other person. But. McGovern’s statements in that assignment were not, and still less were the contents of the inventory and schedules, evidence against the defendant of the matters therein contained. These were mere statements made by McGovern out of court, and on the 29th day of January that on such a day, the 9th of January he owed so much and had so much property. Neither plaintiffs nor defendant claimed under the assignment (Tyler agt. Brook, 68 N. Y., 418; Turner agt. Lee, 57 id., 667).

The evidence of fraud in this case is this: plaintiffs asked McGovern how he was getting along. He said he was getting along good; all right He testifies that at that time he knew he was insolvent, owing $3,600 and having $1,900, and in a month’s time he failed. He testifies that he had no intent to defraud plaintiffs when he made the purchase. Of course the question is whether the purchase was made with the design not to pay. We cannot say that there was no evidence to go to the jury on that point

McGovern’s testimony was contradicted by what he had previously sworn to on another occasion, as to his knowledge of his financial condition when he made the purchase, and this was very material on the question of fraud. Therefore, we cannot disregard the error in the admission of evidence above mentioned, an error insisted upon by the defendant in various waya

Judgment reversed. New trial granted, costs to abide event

Lanuon, J., I concur.