Bedell v. . Chase

Porter, J. The judge was right in refusing to charge the jury that there was no actual and continued change of possession, and that the sale was, therefore, presumptively fraudulent. There was nothing in the proof to warrant such an instruction. He was also right in declining to charge, that if the sale was made by Bedell & Co. in contemplation *388 of insolvency, for the purpose of enabling them to prefer a portion of their creditors, and that this was' known to the plaintiffs, the transaction was-in effect a general assignment, and void by reason of the credit given to the purchasers. There was no evidence to authorize the assumption, that the plaintiffs had any knowledge of the purpose imputed to the vendors. Such a purpose, if it existed, was not unlawful. The debtor is not permitted to hinder or defraud his creditors; but he is at liberty to pay them in such order as he prefers, where there is no claim of legal priority. Ho trust was created ; and it is quite apparent from the proof, that no fraud upon the creditors was either meditated or committed. There was no error in the rulings arising upon the evidence. In reply to proof tending to establish a fraudulent design on the part of the vendors, it was proper to show that the entire proceeds of the sale were immediately applied in payment of debts of the firm. It was also legitimate to permit the examination of the plaintiffs as to their intention in making the purchase. (Griffin v. Marquadt, 21 N. Y., 121; Forbes v. Waller, 25 id., 439; McKown v. Hunter, 30 id., 625.) The court properly excluded proof of the confidential communications made by the plaintiffs to their counsel. (Williams v. Fitch, 18 N. Y., 546; Sibley v. Waffle, 16 id., 180.) The motion for a new trial, on the ground of surprise and newly discovered. evidence, was properly disposed of in the court below; but if it were otherwise, it was matter of discretion, and not subject to review in this court. (Selden v. Delaware & Hudson Canal Co., 29 N. Y., 635.) The verdict was informal, but the irregularity was corrected by amendment in the court below. The judgment should be affirmed. Leohakd, J.,- also read an opinion for affirmance. All the judges concurring, Judgment affirmed.