
    Joseph A. Vega et al., App’lts, v. George B. French et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 15, 1894.)
    
    Appeal—Conflicting evidence.
    Verdict on conflicting evidence will not be disturbed.
    Appeal from a judgment dismissing the complaint on the merits.
    
      P. M. Brown, for app’lts; John D. Quincy, for resp’ts.
   Per Curiam.—

This action was brought by judgment creditors to have a bill of sale executed by the husband, George B., to the wife, Ellen French, set aside, upon the ground that it was made with intent to hinder, delay and defraud creditors. In addition, the plaintiffs sought to obtain a lien on certain real estate owned by the wife; but, as no sufficient proof was offered to sustain any such lien, it appearing that the property was purchased by the wife with her own money, this need not be further considered.

This leaves for our consideration the question of the validity of the bill of sale. The appellants concede that the wife, from time to time, covering a period of some 13 years, loaned to her husband an amount which, without interest, was $6,317.33. The estimate placed upon the property included in the bill of sale, consisting of tobacco and book accounts, was $7,507.91. So that, if the entire amount was realized by the wife, the value of the property turned over to her would exceed, by five or six hundred dollars, the principal amount claimed, by her, and interest thereon. It appears, however, that the plaintiffs refused to deliver, and retained $1,200 worth of the tobacco, which was included in the bill of sale; and this, together with 24 cases relinquished to another creditor, which were worth $1,230.88, also included in the bill of sale, would, assuming that the wife got the full value for the remaining property, leave the amount actually received by her much less than the amount of her claim, without interest. There is much force in the argument that, notwithstanding the result showed that the wife got less, it appearing that the bill of sale provided that she should get some five or six hundred dollars more, than was actually due her, coupled witli the other facts appearing,—that upon talcing possession she constituted her husband her agent and attorney, and undertook to continue the business while holding the creditors at bay,—such evidence would have justified the court in concluding that the bill of sale was made with intent to defraud the creditors. The evidence, however, is equally consistent with the view that no such intent was entertained by the parties; for, in addition to the showing that the consideration for the bill of sale was an honest indebtedness due from the husband to the wife, it would appear that the real intent was to pay the debt of the wife, and that, out of the moneys which she might realize, she was prepared, with the assistance of her husband, to continue the business, with a view of realizing therefrom sufficient to pay her husband’s creditors, thus negativing the idea that the purpose was to defraud. All that can be said is that upon the evidence a question of fact was presented, which has been found adversely to the plaintiffs; and such finding that there was no fraudulent intent having sufficient evidence to sustain it, and not being overborne by weight of evidence to the contrary, it is not the duty of this court to disturb it.

The judgment should be affirmed, with costs.  