
    Fritz Hoeninghaus et al., App’lts, v. Herman Cantor, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. New trial—Error iis charge.
    While the appellate court may, where the trial judge read to the jury from an adjudication what was required to establish the charge of fraud such as that involved in the action, grant a new trial although no exception was taken, it will only be done upon the conviction that the rule laid down was wrong and injustice followed.
    3. Sale—Fraud.
    The evidence to establish fraud in procuring the sale of goods need not be positive, and may consist of facts and circumstances leading to such a conclusion or to no other conclusion; but both must be of such a character as to establish the charge, and not present mere inferences.
    Appeal from a judgment in favor of thé defendant directing the return of certain goods taken under a requisition in an action to recover chattels ; or in default of such return for the value of the goods with costs.
    
      James L. Bishop, for app’lts; Alexander Blumenstiel, for resp’t
   Brady, J.

This action was brought to recover from the defendant, who was the assignor of one Isaac Sickel, certain property claimed by the plaintiffs. The action was at first commenced against the sheriff and the assignee, but as to the former it was in effect discontinued The answer put in issue the title of the plaintiffs.

Upon the trial it appeared that the goods had been sold to the ■defendant’s assignor by the plaintiffs, who sought to maintain their right to recover them upon the ground that they had been obtained by fraudulent representations, and that no title therefore passed to the vendee. The case presents no exceptions, and "we are asked to set aside the verdict and grant a new trial "upon such an issue as that stated, with evidence pro and con, •evidence perhaps which, unanswered, would justify the plaintiff’s claim; but which, answered in the manner it was, would seem to-dissipate the testimony given to demonstrate the fraudulent conduct complained of.

The whole issue was left to the jury' for their consideration, without any attempt to interfere with their deliberations in any way, and the rule of law by which they should be governed was-clearly stated, the learned judge presiding reading from an adjudication in the court of last resort, declaring what was required to establish the charge of fraud such as that upon which the plaintiffs relied for their recovery. It is true that this is objected to-upon the briefs, but was not upon the trial; and although this court might, notwithstanding the absence of the exception, grant a new trial, it would only be done upon the conviction that the-rule laid down was wrong and injustice followed.

In actions embracing charges of fraud the jury is peculiarly adapted for the necessary investigation, and we are met at once with the rule dedueible from the authorities, too familiar to need citation, that on such an issue the facts tending to prove the charge should be clearly established and not left to mere inference or suspicion. The evidence need not be positive to establish the charge; it may consist of facts and circumstances leading to no other conclusion or to such a conclusion; but both must be of such a. character as to establish the charge, and not present mere inferences which do not rise to the dignity of positive and convincing evidence.

In this case, as already suggested, there was a conflict of evidence, and the circumstances were extraordinary attending the business career of Sickel, the assignor; but nevertheless they were neither impossible nor improbable, considering the vicissitudes of business life and the fluctuations in the value of property which are frequently controlled by the general business condition of the country. We do not feel justified, therefore, in interfering with this verdict and overriding the conclusion of the jury, who had the great advantage of seeing the witnesses and hearing their testimony.

For these reasons the judgment must be affirmed, with costs.

Daniels and Brady, JJ., concur.  