
    Robert J. Hoguet et al., Resp’ts, v. Joseph Beekman et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Evidence—Fraud—Declarations op third party.
    In an action for goods sold and delivered, plaintiffs added to their complaint charges of fraud, both in obtaining the property and in making a fraudulent disposition of the same. Evidence of declarations of one T., in whose possession the goods were found, and who claimed to have purchased them from defendants, made at the time of their discovery, but in the absence of defendants, and which tended to throw doubt upon the bonafides of his possession, were admitted. Hid, that in the absence of any proof of conspiracy between S. and defendants, what S. said was res inter alios acta and inadmissible.
    3. Same—Judgment record in another action.
    
      Held, that it was error to admit the judgment record in the action brought by S. against a creditor of defendants for the seizure of the goods discovered under an attachment against defendants; the latter being neither privies nor parties, they could not by a judgment between third parties be charged with a fraudulent disposition of property.
    Appeal from a judgment in favor of the plaintiffs rendered upon a verdict taken at circuit and from an order denying a motion for a new trial.
    
      Mr. Severance, for app’lts; Mr. Blumenstiel, for resp’ts.
   Barrett, J.

The action was for goods sold and delivered. Under the new provisions of the Code, the plaintiffs added to their complaint charges of fraud. These charges were two-fold; first, that the goods were obtained by means of fraudulent representations, and second, that after the delivery of the goods, the defendants made a fraudulent disposition of their property. The defendants admitted the sale and delivery of the goods, but denied the charges of fraud. The jury, however, found against them on both of these issues, and the only question presented by this appeal is whether this civil conviction was upon legal evidence.

The error principally complained of consisted in the admission of the declarations of one Solomon, in whose rooms goods belonging to the defendants were discovered. These declarations were important and highly prejudicial to the defendants. They were made at the time of the discovery of the goods, but" in the absence of the defendants. We know of no principle which justified their admission. They had no bearing upon the first issue of fraud, and they were incompetent upon the second. Their admission is defended upon the conspiracy doctrine. But there is not a particle-of evidence to justify the premise. The case was simply this: A creditor, one"Simmons, discovered certain goods in Solomon’s rooms. This creditor claimed that these goods belonged to the defendants, while Solomon insisted that they belonged to him and that he had purchased them from the defendants.

Upon this naked state of facts, standing entirely alone, what Solomon then said, tending to throw doubt upon the bonafides of his possession, or to connect the defendants, therewith, was plainly res inter alios acta and inadmissible.

It was also error to admit the judgment record in the action brought by Solomon against this creditor Simmons for the seizure (under an attachment against these defendants) of the goods thus discovered. The same principle is again applicable. The defendants were neither parties nor privies; and they could not, by a judgment between third persons be charged with a fraudulent concealment or disposition of property.

It is impossible to hold that these errors did not prejudice the defendants upon the question of fraudulent representation. Upon that issue there was a direct conflict of testimony, in considering which these declarations and this judgment-record may well have turned the scale. A jury is apt to be guided by the broad, general features of a case, and we cannot say, with any reasonable degree of legal certainty, that if the evidence in question had not been admitted, the verdict upon the issue of fraud in contracting the debt would have been the same. The difficulty is that the evidence colored the whole case and tended most thoroughly to discredit the defendants.

We see no escape from the conclusion that this judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event.

Van Brunt, Oh. J., and Daniels, J., concur.  