
    Weeks W. Culver, Appellant, v. David M. Torrey, Respondent.
    Afpeae from a judgment rendered by the justice of the Municipal Court of the city of Dew York, second district, borough of Manhattan, in favor of the defendant. • ■ ■
    Charles W. Culver, for appellant.
    Eobert A. B. Dayton, for respondent.
   Bischoff, P. J.

The defendant, doing business as a private-banker, made a general assignment on the 13th day of October,. 1898, and was thereafter adjudged a bankrupt and discharged from his debts. The plaintiff’s claim is for moneys deposited by him with the defendant prior to the date of the general assignment, the last deposit (the sum of fifteen dollars) having been made three days before that date.

Assuming that the discharge in bankruptcy would not cover this debt, if fraudulently contracted, the burden of proving the fraud was upon the plaintiff, and the only proof upon the subject consisted of the plaintiff’s testimony to an admission by the defendant that he had been insolvent during the period when some deposits were made, which testimony was met by the defendant’s denial and the assertion that he was insolvent for the first time on the day of his general assignment. There is no' evidence as to the state of the defendant’s affairs at the time of the assignment, from which it could be inferred that the insolvency was not due to some sudden cause, and it was well within the province of the justice to accept the defendant’s testimony upon this issue of fraud. In view of that testimony, the effect of the discharge in bankruptcy, as a defense, remained wholly unimpaired, and judgment was properly rendered for the defendant.

So far as appears from the record, there was no error in the exclusion of the report filed by the trustee with the referee in bankruptcy, since this paper, as described, had no necessary bearing upon the state of the defendant’s property some months before, when the plaintiff’s deposits were made, and the return affords no information as to the contents of the document thus offered and excluded.

It is claimed that the justice erroneously excluded the schedules relating to the general assignment, but we have no record before us that these papers were, in fact, offered in evidence.

No ground for reversal is presented by any exception taken to rulings at the trial, and, as we have stated, the judgment cannot be disturbed upon the facts.

Leventbitt and Clabke, JJ., concur.

Judgment affirmed, with costs.  