
    James Hedges, Resp’t, v. William H. Payne Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Replevin—Fraudulent intent—Evidence.
    In an action brought to replevin certain diamonds it appeared that an insolvent jeweler obtained them from the plaintiff on “ memorandum” to select such as he desired to purchase, and return the balance, title to remain in plaintiff until after the selection and bill of sale rendered. Shortly after the jeweler confessed judgment in favor of his wife and her relations, and on the same date made a general assignment for creditors and secreted himself in New Jersey. He had obtained diamonds from other deale: s in the same way; and the same attorney who drew the assignment and acted as his counsel also acted for the judgment creditors. Meld, that the evidence justified the submission to the jury of the question whether or not there was a fraudulent intent of defendant in obtaining the goods.
    2. Same—Pkesumption.
    Plaintiff’s failure to show that the judgments confessed were not bona fide debts did not exclude an inference of fraudulent intent on defendant’s part.
    3. Same—Evidence.
    It was not error to admit in evidence the assignment, the judgments confessed, and evidence of the fact that defendant had obtained from other dealers goods in a similar manner, as they were material as bearing on the question of defendant’s fraudulent intent.
    Appeal from a judgment in favor of plaiutiff, entered upon the verdict of a jury at circuit, and from the order denying the motion for a new trial.
    
      Jandine Lyng, for app’lt; Anderson & Howland, for resp’t.
   O’Brien, J.

The action was brought to replevin certain diamond stones, which the complaint alleged had been consigned on memorandum in December by the plaintiff to the defendant The complaint alleges a demand and a failure to return, and, “ That said defendant Payne wrongfully, unlawfully and fraudulently detained said property from the plaintiff. That the defendants have or the defendant Payne has concealed, removed or disposed of said jewelry or some part thereof, so that the same cannot be nor any part thereof found or taken by the sheriff, and with the intent that the same should not be so found and taken. That the jewelry had been-concealed, removed or disposed of so as to deprive the plaintiff of the benefit thereof.”

The defendant-appellant, Payne, for the purpose of reversing the judgment, asserts that there was no evidence at the close of plaintiff’s case to sustain the allegations of the complaint, and that the motion then made to dismiss the complaint should have been granted, and that no evidence was afterwards furnished to warrant the court in submitting the case to the jury. A mere glance at the testimony will demonstrate that this contention is not supported. The evidence offered by plaintiff tended to show that on December 12, 1887, Payne called upon Hedges and obtained the goods on memorandum. For these he was to pay spot cash, and obtain a bill of sale, or return the goods, as appears from the memorandum itself, which is offered in evidence, from which the following is an extract: “ Consigned on memorandum to Messrs. Payne, Steck & Company, by William S. Hedges & Company The under-mentioned goods are for your examination to enable you to select such as you desire to purchase. Hone of them are sold, nor does the title thereto pass until after we shall be apprised of your selection, and have rendered a bill of sale therefor.”

The diamonds were delivered on December 18th and 23d. Between the latter date and the 28th plaintiff sent several times, and though not seeing the defendant Payne, demanded of his clerk the return of the goods. On the 28th of December Payne confessed judgment to his wife for $14,504.05; to his wife’s uncle for $2,017.31: to his wife’s mother for $7,639.07; to his wife’s cousin for $1,853.31; and to other persons judgments amounting in all to about $4,000. Later on the same date he made a general assignment for the benefit of his creditors, which was tiled on the morning of the 29th of December. From the schedules it appears that the firm assets were about $30,000, and the liabilities $137,000. It was also shown that the same attorney who drew up the assignment, and has acted as Payne’s counsel since, also acted in behalf of the judgment creditors. It was also made to appear that about the same time the defendant obtained from other dealers in the trade goods on memorandum, which he never returned or paid for.

Ou December 26th Payne was seen in his office by the janitor of of the building, who testified that he was alone, that the safe "was opened, and some jewelry spread upon the table, and that subsequently he left the building, carrying a satchel with him. After the assignment on the 28th, and after the sheriff had made a levy under the executions on the confessed judgments, the plaintiffs endeavored to find the defendant Payne, and finally located him in Brick Church, Hew Jersey. He gave no satisfactory explanation of the disposition made of the diamonds, and an examination made of the firm’s sales book and memorardum book afterwards by one of the plaintiff’s clerks failed to show any entry during the month of December of any goods which resembled the goods consigned on memorandum by plaintiffs, except one entry, which, judging from the price, might or might not have been of the pair of diamonds consigned on December 13th.

Upon such testimony, we fail to see what the trial judge could have done otherwise than submit the questions involved to the jury, which were substantially two. The first, as to whether the plaintiffs parted with title, there was no dispute, it being evidenced by the writing, an extract of which has been given and which showed the terms and conditions upon which the diamonds were received, and the agreement of the parties themselves that the title thereto should remain in the plaintiff. The only question that remained in the case practically was as to whether or not there had been a fraudulent disposition of the. property, so as to deprive the plaintiff of the benefit thereof, and the testimony showed that the defendant had secured diamonds of other dealers in the same way, which he failed to account for or return; that when he obtained such goods, there was reason to believe that he knew that he was utterly insolvent, and that some of the property thus obtained, together with the balance of the assets of his firm, were subjected to a levy upon confessed judgments in "favor of relatives, followed so closely by a general assignment as to raise a strong presumption that both constituted but a single transaction, and that the intention was to give an unlawful preference to relatives. All these facts and circumstances were properly admitted and competent to be submitted to the jury upon the question of whether or not, in the absence of any explanation as to what disposition had. been made of plaintiff’s property, there was not a fraudulent intent in obtaining plaintiff’s goods and disposing of the same, so as to prevent his having the benefit thereof. Abegg v. Schwab, 31 St. Rep., 139.

This case is authority for the view that the plaintiff’s failing to show that the judgments confessed were not bona fide debts did not exclude fraudulent’ intent.■ As therein stated: “It is, of course, an important circumstance, but as was said in Billings v. Russell, 101 N. Y., 226: ‘ It is not inconsistent with an intent on the part of a debtor to defraud his creditors.’ ”

Upon a consideration of the above facts, the jury found that the defendant was guilty of fraud, and we see no reason for disturbing their verdict. Where, as here, the title to the property was shown to be in the plaintiff, all that was necessary to support a recovery was for the plaintiff to show that the goods had been removed, concealed or disposed of, so that they cannot be found or taken by the sheriff, and with the intent that they should not be so found or taken, or to deprive the plaintiff of the benefit thereof. Code Civ. Pro., § 549, subd. 2. It was not error to admit in evidence the assignments and the judgments confessed, as these were material to be considered in connection with all the other facts for the purpose of showing the intent The weight to be given them so that no injury might result to appellant, was clearly marked by the charge of the learned judge: “ That the mere fact that the defendant-became embarrassed in business and made an assignment and confessed judgment does not establish any wrongful or fraudulent intent.” The only other exception which has been pressed upon this appeal is that taken to the admission of evidence as to the contents of the book. That' all primary sources were exhausted before secondary evidence was allowed is evident by the record. The only suggestion made of any omission was the alleged failure of the plaintiff to show a notice served upon the defendant to produce the books. The respondent insists that such a notice was given, -but its failure to appear in the case compels us to regard the question as though no notice had been given. ' Under these circumstances, however, where there is a reasonable probability that such ’’notice was given because upon the argument of the appeal the original notice to produce was exhibited, it remains for the appellant, in order to gain any advantage from an objection based on such slender foundation as the omission to include “ the notice to produce ” in the printed case on appeal, to bring himself clearly within the rule entitling him to the benefit of an exception on this ground.

An examination of the case will show that when the secondary evidence was about to be given, the objection was interposed in the following language: “ Defendant’s counsel renews his objection to allowing the witness to answer what those books show. Objection overruled and defendant excepts.” It nowhere in the case, prior to the objection thus taken, appears that any such objection was made, nor was any evidence given of entries in regard to 'the books. It will be noticed, therefore, that the grounds of .objection when made were not stated, and a general objection of this kind is not available, particularly where, as here, it is not shown that any injury resulted by the exercise of the discretion which is vested in the trial judge, as to when and upon what proof he would admit secondary evidence of the contents of books. As has been said in the case of Naugatuck Cutlery Co. v. Babcock, 22 Hun, 487: “ It is so much a matter of discretion with the judge at the trial in determining whether a case is made for the introduction of secondary evidence, that his ruling should not be reversed unless it appears very clearly that error has been committed which has prejudiced the case of the party who complains.”

It appears from the evidence that these books were not in the possession of the defendant, but had been surrendered to the original assignee, subsequently to the substituted assignee, and had been seen for the last time when used upon the trial of an action in this court.

Under these circumstances, it can hardly be claimed that the defendant was prejudiced by a failure to serve him with a notice to produce books not in his possession and not under his control, even if we assume, what appears to be contrary to the real fact, that such notice was not given. We see no reason for disturbing the - judgment, and it should, together with the order appealed from, be affirmed, with costs.

Van Brunt, P. J.

I concur, but I do not concur in what is said as to production of notice to produce upon the argument. Sometimes appellate courts will receive record evidence, Dunham v. Townshend, 118 N. Y., 286; 28 St. Rep., 864, and cases cited, but no other kind of proof. The notice to produce was not a record and did not necessarily prove itself.

Lawrence, J., concurs in result.  