
    Frank C. Chesley, App’lt, v. William B. Hughes, as Sheriff, etc., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Appeal—Discretion.
    An order denying a new trial on the ground that the verdict is contrary to the evidence will not he reversed, unless there has been an abuse of discretion.
    Appeal from an order setting aside a verdict in favor of plaintiff, and granting a new trial on the minutes of the court.
    
      James H. Waring, for app’lt; Charles S. Cary, for resp’t
   Lewis, J.

This action was brought to recover the value of a. stock of furniture alleged to have been converted by the defendant as sheriff of Cattaraugus county. The firm of George E. Howland & Co. composed of George E. Howland and Daniel W. Pierce, in the latter part of December, 1891, purchased a stock of furniture of different dealers, amounting in value to about the sum of $4,-000. They opened a store in Olean the 1st of January, 1892, and continued in busines until the forepart of March of that year, and then transferred their entire stock to the plaintiff for a consideration of $2,400. Twelve hundred dollars of the purchase price was applied upon an alleged "indebtedness of the firm to the plaintiff for money which it was claimed the'plaintiff had loaned them from time to time, and for goods sold to them after they opened their store, and and before the transfer, amounting in all to the sum of $1,200, and for the balance of the purchase price of the stock the plaintiff gave his two promissory notes, for $600 each, one coming due 18 months from its date and the other 2 years. The creditors of the firm caused attachments to be issued and delivered to the sheriff, and he, by virtue thereof, took possession of the stock of goods. The plaintiff recovered a verdict against the sheriff for the sum of $2,200, which was set aside by the court, upon the ground that the verdict was against the weight of evidence. The evidence tended to show that neither Howland nor Pierce had any means with which to engage in business; neither had they any credit, except that that was manufactured by the statements of the plaintiff to the salemen of the various dealers who sold them goods. The evidence tended very strongly to show that the members of the firm and the plaintiff entered into a fraudulent scheme to obtain possession of the stock of goods with the intention of disposing of them, and defrauding the firm's creditors. There was evidence tending to show that the salesmen of the creditors were induced to sell goods to the firm upon the representation of the plaintiff that they were responsible, and that it would be sáfe to sell them goods. The evidence tended to show that the plaintiff was aware that Mr. Howland, who was his father-in-law, was, at the time representations were made, entirely irresponsible pecuniarily. The plaintiff testified that, when Howland informed him that he was going into the furniture business at Olean he laughed at him, and said, “How is that ? How are you going into business?” and that Howland replied, “I have got that all fixed; that Mr. Pierce's people were to furnish means to put into the business.’’ ■ The plaintiff testified that he had no knowledge as to the responsibility of Mr. Pierce, and yet he represented the- firm to be responsible and worthy of credit, and thereby induced the dealers to sell the firm goods to the value of $4,000, which they about three months thereafter transferred to him at the price of $2,400. Without rehearsing all of the evidence, we are satisfied, from an examination of it, that the trial court was justified in granting the order appealed from. While such an order is. appealable, under Code Civ. Proc. § 1342, an appellate court would Tnot be justified in reversing the action of the trial court unless it was made to appear that the discretion vested in the Court had been abused. McKeever v. Weyer, 11 Wkly. Dig. 258; Young v. Stone, 60 St. Rep. 419.

The granting of motions to set aside verdicts as contrary to evidence, as well as motions for new trials upon the ground of newly-discovered evidence, are, as a rule, addressed to the discretion of ■the court, and depend in a great degree upon the peculiar circumstances of the case. The justice presiding at the trial has advantages and opportunities to judge of the propriety of the verdict not possessed by the appellate court. He is permitted to listen to the witnesses while giving their evidence, and observe their manner and conduct upon thé trial; and when he exercises a discretion in a case the appellate court will not reverse, unless it pretty clearly appears that he has abused his discretion. Barrett v. Third Ave. Railway Co., 45 N. Y. 628, 632. An examination of this case has satisfied us that it was a very proper case for granting the order. The order appealed from should be affirmed, with $10 costs and disbursements, to abide the event of the action.

All concur.  