
    Frank C. Chesley, Appellant, v. William B. Hughes, as Sheriff of the County of Cattaraugus, Respondent.
    
      Order granting a new trial —reversed on appeal only for abuse of discretion.
    
    While an order, setting aside the verdict of a jury and granting a new trial of an action on the ground that the verdict is against the weight of the evidence, is appealable under the provisions of section 1842 of the Code of Civil Procedure, an appellate court will not he justified in reversing the action of the trial court unless it appears that the discretion vested in the trial court has been abused.
    The granting of motions to set aside verdicts as contrary to the evidence rests in the discretion of the court, and depends in a great degree upon the peculiar circumstances of each case.
    Appeal by tbe plaintiff, Frank C. Cbesley, from an order of tbe Supreme Court, made at tbe Cattaraugus Circuit and entered in tbe office of tbe clerk of tbe county of Cattaraugus on tbe 31st day of May, 1893, granting tbe defendant’s motion for a new trial made upon tbe minutes.
    
      James II. Waring, for tbe appellant. .
    
      Charles 8. Gary, for the respondent.
   Lewis, J.:

This action was brought to recover tbe value of a stock of furniture alleged to have been converted by the defendant as sheriff of Cattaraugus county. The linn of George E. Howland & Co., composed of George E. Howland and Daniel W. Pierce, in tbe latter part of December, 1891, purchased a stock of furniture of-different dealers, amounting in value to about tbe sum of $4,000. They opened a store in Olean tbe 1st of January, 1892, and continued in business until tbe fore part of March of that year, and then transferred their entire stock to tbe plaintiff for a consideration of $2,400. Twelve hundred dollars of tbe purchase price was applied upon an alleged indebtedness of tbe firm to tbe plaintiff for money which it was claimed tbe plaintiff bad loaned them from time to time, and for goods sold to them after they opened their store and before tbe transfer, amounting in all to tbe sum of $1,200, and for tbe balance of the purchase price of the stock the plaintiff gaye Ms two promissory notes for $600 each, one coming due eighteen months from its date, and the other two year's. 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 Piei’ce had any means with which to engage in business, neither had they any credit except such as was manufactured by the statement of the plaintiff to the salesmen 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 it, and thereby 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 safe to sell them goods. The evidence tended to show that the plaintiff was aware that Mr. How-land, who was his father-in-law, was at the time the 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 ; ’ I says, How ? ’ He said: ‘ Mr. Pierce’s people are going to furnish the stuff.’ ” 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 of Civil Procedure, section 1342, an appellate court would not be justified in reversing the action of the trial court unless it was made to appear that the discretion vested in that court had been abused. (McKeever v. Weyer, 11 N. Y. Wkly. Dig. 258 ; Young v. Stone, 28 N. Y. Supp. 881.)

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 is, as a rule, addressed to the discretion of the court, and depends 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 the trial, and when he exercises a discretion in such a case the appellate court will not reverse his decision unless it pretty clearly appears that he has abused his discretion. (Barrett v. 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 ten dollars costs and disbursements.

Dwight, P. J., Haight and Beadley, JJ., concurred.

Order granting a new trial appealed from affirmed, with costs.  