
    Henry F. Hamill, Plaintiff and Appellant, v. James C. Willett, Sheriff, &c., Defendant and Respondent.
    1. Where two partners dissolve, one taking all the stock and agreeing to pay all the debts, and stipulating for the right to use the firm’s name in continuing the business, the mere facts that he continued the business, using the same sign, same business cards, and same form of bank account, and drew checks in the firm’s name, and employed the retiring partner as a salesman and clerk, at an agreed monthly compensation, are alone insufficient to warrant the inference that the transfer was made by the"retiring partner with intent to defraud creditors, or to subject the property to levy by an execution at the suit of an individual creditor of the retiring partner, who became such creditor subsequent to the dissolution.
    (Before Hoffman and Woodruff, J. J.)
    Heard, April 10th;
    decided, April 28th, 1860.
    
      Appeal by the plaintiff from a judgment and an order denying a motion made by him for a new trial. The action was tried before Boswobth, Ch. J., and a jury, May 2, 1859. It was brought to recover possession of personal property which the plaintiff claimed to own, and which the defendant, as Sheriff, had seized on an execution on a judgment rendered December 20, 1856, in favor of Henry Husmeyer against James Gr. Hamill, which property the Sheriff claimed was the property of James.
    Most of the property in question originally belonged to the plaintiff and James Gr. Hamill, as partners. They dissolved July 1, 1856, the plaintiff taking all the assets and agreeing to pay all the firm’s debts. He continued the business, using the firm’s name, sign, &c., and employed James as 'salesman, &c., at an agreed sum per month. The other facts are sufficiently stated in the opinion of the Court.
    
      C. Patterson, for appellant,
    Insisted that the verdict was contrary to clear and uncontradicted evidence; that no question of fraud was raised by the pleadings, and no evidence of fraud was given on the trial; and that it necessarily followed that the jury erred.
    
      A. J. Vanderpoel, for respondent.
    I. There are no exceptions to the rulings, nor to the charge of the Court. The charge is not given. We, therefore, are bound, to intend that the case was fairly submitted to the jury.
    II. The verdict in this case is fully justified by the evidence, and the jury gave the only verdict which the facts sanctioned. The plaintiff’s own testimony not only wholly failed to rebut the presumption declared by the statute as consequent upon a want of change of possession, but also showed a clear case of fraudulent changing of the legal title to the property, as against the creditors of James G. Hamill, the judgment debtor. (2 R. S., p. 136, §5.)
    1. Before the statute, the Judge would have been bound to nonsuit. Kow it is peculiarly a question for the jury.
    The vendor remained in as complete control and possession, according to all appearances, as he had ever been, and the parties expressly stipulated and agreed to maintain these false pretenses, lest creditors should suspect that there had been a change of interest, and become alarmed.
    2'. To lull creditors into security, the name of the vendor was, by the agreement, to continue to be used, as formerly, on cards, signs, and for business purposes, which comprised every way in which notice could be given. The judgment debtor would be liable for all debts which might be contracted.
    They continued to do business in the same name as before sale; sign same; card same. Bank account continued to time of trial in name of Hamill & Brother. The business had been established by the judgment debtor. The plaintiff was admitted as a partner as late as 1855. The judgment debtor was the real man in the concern. There was no evidence that the plaintiff' ever contributed a dollar to the capital.
    3. The only witness called to give evidence to rebut the presumption of fraud was the plaintiff". The jury had a right to criticise his evidence and conduct as influenced by his interest, and give to it such weight as it was entitled to.
    III. The Court will not, even in actions not sounding in fraud, set aside a verdict, unless there is such a preponderance of evidence as to satisfy the Court that there was either an absolute mistake on the part of the jury, or that they acted under the influence of prejudice; passion or corruption. (Cohen v. Dupont, 1 Sand. S. C. R., 260.)
    1. There is nothing in the verdict in this case to justify a suspicion that the jury acted under either of the above influences.
    2. But on a question of fraudulent transfer, such as was involved in this case, the Court will not set aside the verdict of the jury when they are not misdirected, and when there is evidence on both sides, come from what source it may, fraud being a question peculiarly within the province of the jury. (Ward v. Center, 3 Johns., 271.)
    3. The plaintiffs’ counsel at the trial did not suggest a doubt but that the question was one upon which the jury should be required to pass their verdict.
    IV. The verdict is proper in form—the levy being upon partnership property, the creditor was entitled to the possession of the property, for the purpose of selling the right, title, and interest of the debtor. (Dows v. Rush, 28 Barb., 158, 187.)
    The judgment should be affirmed.
   By the Court—Hoffman, J.

The action is to recover possession of personal property. The defendant justifies the taking and detention, and demands a redelivery, upon the ground of a judgment and execution against James G. Hamill, insisting that the goods were his property.

No exceptions were taken to any ruling, or the charge of the Judge. The jury found a verdict for the defendant, and that the value of the property was five hundred dollars. An order was made denying a motion for a new trial. Judgment has been entered, and appeals taken from such judgment and order.

The case has been, tried upon the theory that the goods were those of James G. Hamill, and that the claim and possession of the plaintiff was a cover. .

The plaintiff was the only witness, with one unimportant exception. Upon his evidence and some instruments the verdict has been founded.

It appears that in 1855 the plaintiff and James G. Hamill were in partnership. On the 1st day of July, 1856, they dissolved, and by the articles of dissolution, the plaintiff took the whole of the property, assuming the debts and liabilities of the firm. It is stated that the amount of property was equal, or nearly equal, to the amount of the debts. It was then stipulated, in order that said Henry F. Hamill might be the better enabled to carry on the business, and discharge the debts without alarming unnecessarily any creditor of the concern, that James G. Hamill should allow his name to remain on the cards and signs of any business place which said Henry F. Hamill should select, and allow such other use of his name for business purposes as said Henry F. should see fit; the use of his name being considered advantageous, as he had been engaged in the business previous to said Henry F. engaging in it, and from his extensive acquaintance with the customers. James G. Hamill then covenanted, in consideration of the premises, and his earnest desire to see all the debts paid, and the business settled up satisfactorily, that he would remain as salesman, clerk, or laborer, for one year: Henry F. Hamill paying him twenty dollars per month, and furnishing his board and lodging; which Henry F. thereby undertook and agreed to do.

About the 1st of July, 1856, the plaintiff moved from the former place of business of the firm, to 357 West street. . The property taken by the defendant had all been property of the firm, except a pile of iron, purchased since the dissolution. The sign over the door at the place of business, after the dissolution, was Hamill & Brother; the same names were used on the carts at the time of the levy. An account was kept at the bank in the name of Hamill & Brother, and the plaintiff continued to sign checks in such name. The plaintiff had no other brother than James.

A lease had been taken to the firm, on the 5th of June, 1856, for the property in West street, and this was assigned by James to the plaintiff on the 12th of September, 1856.

Another lease, of what appears to have been adjoining premises, was also held by the firm, and was also assigned by James to the plaintiff, on the same day.

The levy was made on the 11th of February, 1857; the judgment obtained on the 20th of December, 1856.

This is the substance of the evidence given upon the trial. Husmeyer, the plaintiff in the action against James Gr. Hamill, deposed, that he was security for the sheriff in the suit, before the levy was made.

The question was not raised on the trial, that the defendant was not in a position to question the bona fides of the transfer from James Gr. Hamill to the plaintiff.

We cannot understand how it was possible for the Jury, upon this uncontroverted and undiscredited evidence, to find the verdict they have rendered. That the property originally belonged to the firm composed of James and the plaintiff, cannot be disputed ; that the transfer by the articles of dissolution of the 1st of July, 1856, was no way invalid on its face, or justifying any inference of fraud by its provisions, seems to us clear;, that the possession then must be deemed to be presumptively the possession of the plaintiff under his purchase, and not that of the firm, seems also plain. We think also that the continuance of the name, and other circumstances, are sufficiently explained, and at least, are wholly insufficient to warrant the conclusion of fraud in the transaction, so as to justify the result that the property was in truth the property of James, or that his interest as a partner remained in him at the date of the levy.

We think there must be a new trial upon payment of costs of the former trial. Costs of the appeal to abide the event.

Ordered accordingly.  