
    Frederick Lowey, Respondent, v. The Fidelity Printing Co., Appellant.
    (Supreme Court, Appellate Term,
    April, 1896.)
    Trial — Withdrawal of case from jury — Weight of evidence.
    Where the sole evidence in behalf of the plaintiff’s contention is the testimony of himself and i his brother, who, is a stockholder in and part owner of a company which will be liable in case of an adverse decision, the credibility of the witnesses should be' determined by the jury although no.t assailed or impeached; and, in the absence of a* motion by defendant for a dismissal of the complaint or the direction of a verdict, it is error for the court to withdraw the case from them.
    Lowey v. Fidelity Printing Co., 12 Mise. Rep. 551, reversed.
    Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment for the plaintiff rendered at Trial Term upon a verdict directed by the court.
    Action to recover against the defendant corporation as the successor in interest of another corporation, and upon an alleged contractual assumption by the former of the latter’s liabilities.
    Jonathan 0. Ross, for appellant.
    T. B. Wakeman, for respondent.
   Bischoff, J.

In this action the plaintiff sought to charge the defendant corporation with certain liabilities upon transactions had in the year 1891 between him and another corporation, the Lowey Printing & Stationery Company, upon the grounds (1) that the defendant has succeeded to the rights and assets of the Lowey Company, and (2) that upon a sale of such assets to the defendant it- had contractually assumed to pay the Lowey Company’s debts. A verdict for the plaintiff was directed at the trial against the defendant’s objection, and to the ruling due exception appears in the record. .

It is clear that the court below entertained the action upon no other ground than the one last above alluded to. It was not even attempted to show that the defendant was the Lowey Company reorganized or consolidated with another corporation pursuant to. the provisions of the Business Corporation Law (Laws of 1890, chap. 567', §§ 5,13, 17), in either of which events only the new corporation would assume the liabilities of the former by operation of law (Thompson’s Com. Law of Corps, § 365, etc.), and if by Succession to the rights and assets of the Lowey Company, alone, the defendant, to that extent, was bound for the debts of its predecessor, for purely equitable reasons the court, being without the jurisdiction of a court of equity, could not render the judgment appealed from. •

"We do not deem it essential, upon this appeal, to go-into the facts touching the claims against the Lowey Company, although there is room for contention as to whether the plaintiff’s first cause of action could prevail upon the evidence adduced. In our view the judgment is well assailed for the error which appears from the exception taken to the trial justice’s withdrawal of the: case from the jury. No motion was made by the defendant’s counsel, after both sides had concluded the introduction of evidence, either for dismissal of the complaint, or for the direction of a verdict. It cannot, therefore, be urged that the defendant consented to á determination of the facts by the court. Its liability in this action • as well as the facts' were contested' by the defendant, by answer and upon the trial.

The only evidence, if any, • of an assumption by the defendant of the Lowey Company’s liabilities is to be found in the testimony of the plaintiff and of his brother, William Lowey, called as a witness in the former’s behalf;, and so with regard to the evidence of the value of the chattels claimed to have been converted. Both .witnesses were interested in the event of-the action, the plaintiff obviously so, and his brother as a conceded stockholder in, and part owner of, the Lowey Company (Canajoharie Nat. Bk. v. Diefendorf, 123 N. Y. 191, 200) in whose hands the assets, of the last-named company, or the proceeds of the sale of such assets, were applicable to the payment of that company’s debts if the effort to charge the defendant with such debts should prove unavailing. The credibility of these witnesses, therefore, was to be determined by the jury notwithstanding that such credibility may not have been directly assailed or impeached. Elwood v. West. U. Tel. Co., 45 N. Y. 549; Wohlfart v. Beckert, 92 id. 490; Cady v. Bradshaw, 116 id. 188; Canajoharie Nat. Bk. v. Diefendorf, 123 id. 191, 200; 29 Am. & Eng. Ency. of Law, 774.

Errors also appear in the admission and exclusion of evidence. It would be supererogatory, however, to discuss them, since they may not occur upon a retrial of the action, and reversal of the .judgment appealed from is imperative upon the error herein-before pointed out.

The judgments of the General and Trial Terms of the court below are reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial orderéd, with costs to appellant to abide event.  