
    George Goodman, Respondent, v. Henry Myers, Marshal, Appellant.
    (New York Common Pleas — General Term,
    February, 1895.)
    In an action to recover damages - sustained by reason of the levy by a marshal upon -the contents of a .grocery store under an attachment against other persons, the evidence tended to show that the attachment debtor had given a bill of sale of the ...business and goods, to plaintiff’s brother three days before, the levy in payment of a debt for borrowed money, and that the latter had sold the same to the plaintiff for a valuable consideration. It also appeared that the debtor remained upon the premises, but there was a conflict in the evidence as to whether he remained in the store or only in the apartments in the rear by permission of his vendee. Held, that the verdict of the jury in favor of the plaintiff would not be disturbed.
    It is competent, upon the question of the credibility of a witness, to- show ■ that he has a pecuniary interest in the result of the action. >,
    ■Appeal from a judgment of this court entered upon the verdict of a jury in favor of the plaintiff.
    The action was brought to recover damages for a seizure by a city marshal of the contents of a grocery at 11 Cannon ■street, on October 25, 1892. The defendant justified under an- attachment against Fischel & Schwartz, alleging that they had a leviable interest in the goods.
    
      A. H. Bcxrick, for appellant.
    ■ Gka/rles Btechl&r, for respondent.
   Daly, Ch. J.

The pl-aintiff, George Goodman, claimed to be the owner of a' grocery bitsitiess at It Cannon street by virtue of a bill of sale executed to him 'on -October 24, 1892,-the. day before the marshal’s levy, by his brother,. Adolph Goodman. Adolph Goodman claimed to have a bill of sale from Fisehel, one of the debtors in the attachment, executed on October 22, 1892. The bona fides of these conveyances was the issue tried in the action, and the jury found by their verdict that they were executed in good faith and for a valuable consideration. It is contended by appellant that the verdict was against the evidence; that the sales were presumptively fraudulent because the vendor Fisehel remained in possession after his conveyance, and that there was no evidence to rebut the presumption, and that evidence was improperly admitted' to affect the credibility of defendant’s witness Hulla.

The case, as made out by plaintiff, was this: Fisehel, in August, 1892, borrowed $300 from his brother-in-law, Adolph Goodman, to buy this grocery, and gave his note for it. When the note was due, on October 22, 1892, Goodman demanded payment, and Fisehel offered to give him the store, upon surrender of the note and the payment of twenty-five dollars additional, whereupon a bill of sale was executed. Adolph Goodman immediately sought a purchaser for the business, and found one in his brother, the plaintiff, who was brought to him two days after by a broker, and to whom he sold for $350.

The peculiar circumstance of his making a sale to his own brother through a broker, and the other circumstances of the case, are the subject of criticism by the plaintiff, but the jury Considered the explanation and statements given by the witnesses, the two brothers, the broker and others, and, if they believed that the witnesses were truthful, they were entirely justified in finding that Adolph Goodman took this property in good faith in payment of his debt, and that George Goodman, the plaintiff,. bought it in good faith for cash. The verdict of a jury upon such a state of facts as here disclosed could not be disturbed by us in any reasonable view of our duty to review evidence upon the motion for a new trial.

The fact that Fisehel, the judgment debtor, remained upon the premises, after the sale by him, cannot be- disputed. Whether he remained in the store, or merely occupied by permission of his vendee the dwelling apartments in the rear, was perhaps a question on the evidence. Defendant’s witnesses swore that he was in the store and negotiated for the sale of it after his alleged sale to Goodman. Upon the facts the court would have been justified in instructing the jury that there was no actual and continued change of possession. and that the sale was, therefore, presumptively fraudulent.

Defendant claims that upon the evidence as to Fischel’s possession he was entitled to a dismissal of the complaint; and siich was his motion at the close of the plaintiff’s case. The motions were properly denied because the plaintiff had furnished evidence from which the jury might find that the sale by Fischel was made in good faith and without any intent to defraud his creditors. 2 R. S. 136. Adolph Goodman explained that he permitted Fischel and his family to live in their apartments back of the store until they got another place. The sale was made on Saturday, and the privilege to remain over Sunday or until Tuesday or Wednesday, or until he got another place.”

One of defendant’s -witnesses, Kulla, who was called to testify that he saw Fischel behind the counter selling, as usual, on Sunday and Monday when he went to collect a bill due him, was asked on cross-examination whether he had indemnified the marshal in this case and if he knew that if the marshal had to pay he would be held responsible, to which he made an affirmative answer. Exception was taken by plaintiff to the allowance of these questions, but the ruling of the court was correct. The testimony went to a most important circumstance affecting the validity of plaintiff’s ownership, and the lattter was entitled to show that the witness had a pecuniary interest in the result of the action which ought to be considered by the jury in "weighing his testimony. •

The judgment and order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.

Judgment and order affirmed, with costs-.  