
    Daniel McCabe, Appellant, v. William P. Brayton, late Sheriff, Respondent.
    Evidence on question of fraud against creditors. Agency. Action against sheriff to recover goods seized hy him under execution against party in possession. Claim by plaintiff that goods were his, judgment debtor being his agent only, for their sale. Denial by defendant (sheriff), 4 that relation of principal and agent existed, in fact, between plaintiff and judgment debtor, in whose hands the goods were seized; and allegation, that the relation was assumed for the purpose of defraudin'g the creditors of the latter. The only questions determined relate to the admission of evidence to prove the state of facts alleged by defendant.
    The objection made to evidence showing fraud between the plaintiff and judgment debtor, admitted before the defendant had put himself in position to attack plaintiff’s title on that ground, though prima facie well taken at the time, is taken away by the introduction of evidence subsequently showing his right so to attack the title.
    Testimony, showing the nature of the dealings between the plaintiff and judgment debtor, and tending to show whether, at some former period, the plaintiff was establishing the business in question upon his own account, or merely acquiring a nominal title to the goods, the real title and interest being in the judgment debtor, is admissible Evidence of composition by the judgment debtor with his creditors, during the time the business was carried on between him and the plaintiff, is competent, as revealing a motive for conducting business in the manner charged by defendant.
    Evidence of what a witness swore to on a former occasion is admissible only upon the question of Ms credibility; it cannot be received as proof of the facts so sworn to.
    Practice ; motion to strike out evidence. A motion to strike out the entire testimony of a witness, a portion of which testimony is competent, and a portion incompetent, is properly denied. The motion should be restricted to the incompetent portion—then its denial would be error.
    Appeal review. On an appeal upon exceptions to the findings of fact in the report of a referee, the Supreme Court are to inquire whether the finding is against the weight of evidence, and, if so, to reverse it; in tMs court, the question presented is only whether there is any evidence to sustain the finding.
    Action to recover possession of certain dry goods which ' the plaintiff claimed as his property, and which he claimed he had delivered to one Carroll, as agent, to sell on plaint- • iff’s account, and for his benefit. The defendant claimed that the goods were the property of Carroll, and made title thereto in himself, under an execution issued out of the Supreme Court, against Carroll, which he, as sheriff, had levied upon said goods. The cause was referred, and, upon trial before the referee, it appeared that a store was kept at Cohoes, in the name of the plaintiff, in which dry and fancy goods, principally furnished by the plaintiff, had been kept for sale for several years prior to the levy; that the store was attended, and the business transacted, by Carroll, acting as agent for the plaintiff, as he claimed.
    The question of fact litigated was, whether the goods were furnished by the plaintiff to be sold by Carroll, as his agent, or whether they were sold by plaintiff to Carroll; and the claim that he received them, as agent, to sell for the plaintiff, was a mere device to enable Carroll to defraud his creditors.
    The referee found for the defendant, and ordered judgment for him, which was affirmed, upon appeal, by the Supreme Court, from which the plaintiff appealed to this court.
    Several exceptions were taken to rulings of- the referee, upon the admissibility of evidence, and also to the finding of fact. The facts upon which the question arises will be found in the opinion.
    
      Mr. Hand, for the appellant.
    
      Mr. Crawford, for the respondent.
   Grover, J.

The referee found that the goods in question were, at the time of the levy thereon by the defendant, the property of Carroll. This finding determined the case in favor of the defendant. The exception taken by the plaintiff thereto, only raises the question in this court, whether there was any evidence to sustain it. In the Supreme Court, the question thus presented was different. The latter court were to inquire whether the finding was against the weight of evidence, and if so, to reverse it. The case shows there was evidence in support of the finding. The proof shows that the business had been carried on for several years prior to the levy; that goods were from time to time, at the request of Carroll, sent by the plaintiff to the store; that an account of the goods, at wholesale prices, was kept by the plaintiff, * who resided and kept a store in Hew York; that money was from time to time sent by Carroll to the plaintiff, and an account of such moneys also kept; that no other accounts were kept between the parties; that from time to time these accounts were looked over and balances struck; that Carroll had the entire charge of the business; paid his family and other expenses from the proceeds of the sales of the goods, of which no account was kept and no reference thereto had, in looking over the accounts, by plaintiff and Carroll. This evidence tended to show that the real transaction was a sale of the goods by the plaintiff to Carroll, as found by the referee. As above remarked, this court, in this case, cannot examine the evidence to determine its weight.

The exceptions taken to the rulings of the referee upon the competency of evidence must be determined by an examination of the entire evidence in the case. Many of these exceptions were taken to the admission of evidence, with a view to show fraud between the plaintiff and Carroll, as to the creditors of the latter, before the defendant had put himself _ in a position to attack the title of the former upon that ground. These exceptions were at the time prima facie well taken, but the defendant afterward proved the judgment and execution issued thereon against Carroll, and the levy by him, upon the goods in question. This, by showing his right to attack the title of the plaintiff upon the ground, that it was fraudulent as against the creditors of Carroll, took away the objection so far as it. depended upon that. The defendant had the right to prove the assignment by Carroll to Lyndon, made in eighteen hundred and fifty-four, and the purchase of the goods, so assigned by the plaintiff, from Lyndon, and who paid the nominal consideration upon such purchase, and what was done with the goods after such purchase These facts, while they did not establish fraud between Carroll and the plaintiff, were proper to be taken into the account in determining the nature of the dealings between the plaintiff and Carroll, to show whether the plaintiff, at that time, was establishing a business of his own at Cohoes, to be conducted for his own benefit, and upon his own account, or whether he was acquiring the nominal title to the goods and business while the real title and interest remained in Carroll. The same answer is applicable to the exceptions to proof given of the business transacted by Carroll and the plaintiff, subsequent to this purchase, and of the mode of conducting such business. It was competent upon cross-examination of Carroll and the plaintiff, to inquire what they had testified to upon previous occasions as to the business, so far as the same tended to affect the credibility of the evidence given by them in the case upon trial; and, in case they were unable to state how they did testify, to ask hypothetically, if they testified in a given way, whether it was true. This, the witness might answer or not as he chose; and, when he had testified that he did not recollect, it would have been error to compel an answer to the hypothetical question. The examination is allowable, merely as a mode of determining the credibility of the witness. If the witness answers he did not recollect how he testified, but if he did testify as supposed, it was true it would be error to receive evidence that he did in fact so testify, as proof of the fact. That would be deter • mining the issue, not upon the proof given in the case, but upon testimony given in other proceedings. Evidence of what a witness swore to on previous occasions is admissible, only, upon the question of his credibility. But asking the hypothetical question, and receiving the voluntary answer of the witness to test his credibility, is not error. It does not appear, that any thing more was allowed by the referee upon the present trial. Evidence of debts owing by Carroll, and of compositions made by him with creditors, during the time the business was carried on between him and the plaintiff, was competent. It tended to show a motive on his part for adopting the mode of conducting his business with the plaintiff, as claimed by the defendant. Crawford finally testified, that he knew that all the minutes of previous testimony of the plaintiff and Carroll, read by him, were correctly taken at the •time they were taken. This placed such minutes upon the same footing as though wholly taken by him. The exception upon that ground was not well taken. The motion to strike out the evidence of Crawford, showing what the plaintiff and Carroll had testified to upon previous occasions, was properly denied. The motion embraced the entire testimony given by the witness showing this. As to the witness Carroll, a portion of such testimony was competent, and a portion incompetent. The same remark is applicable to his testimony showing that of the plaintiff. The motion should have been restricted to the incompetent portions, and then its denial would have been error.

The judgment appealed from should be affirmed.

All concur

Affirmed.  