
    (86 Hun, 339.)
    GOODWIN v. SCHREIBER.
    (Supreme Court, General Term, Fourth Department.
    May 4, 1895.)
    Judgment—Conformin'g to Verdict—Remedy by Motion.
    The objection that a judgment does not conform to the verdict must be taken by motion to correct the judgment, and cannot be raised on appeal from the judgment
    Appeal from circuit court, Oneida county.
    Action by William Goodwin against John C. Schreiber to recover damages for the conversion of goods taken by defendant under execution, and for damages to plaintiff’s premises and business. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Jones & Townsend, for appellant.
    Matteson & De Angelis and William Kernan, for respondent.
   MERWIN, J.

On the 16th day of September, 1892, the defendant, as sheriff of the county of Oneida, under an attachment against the property of Enos Boutilier and Alexander M. Hubley, composing the firm of Boutilier & Co., levied upon 410 bales of rags then being in the possession of the plaintiff. On the 20th September, 1892, a similar levy vías made by defendant under another attachment; and on the 2d February, 1893, the property was sold by the defendant under executions issued on judgments recovered in the actions in which the attachments were issued. The plaintiff was a dealer in rags, and the property levied on consisted of his entire stock in his storehouse. The sheriff took possession of the storehouse, and so remained about a month, when he removed the goods. This action is brought to recover damages for the conversion of the goods taken by the defendant, and for damages to the premises and business of the plaintiff. The verdict is for the value of the goods. The claim of the defendant is that all the goods taken were sold by Boutilier & Co. to tlie plaintiff under such circumstances as indicated an intention on the part of Boutilier & Co. to hinder, delay, and defraud their creditors, and that the plaintiff participated in the fraud. The plaintiff claims that a considerable portion of the goods were purchased by him of other parties, and that what he purchased of Boutilier & Co. were purchased in good faith, for a valuable consideration, and without any notice of any fraudulent intent on the part of Boutilier & Co.

Boutilier & Co. had for several years been engaged in the business of buying, selling, sorting, and grading rags, to the extent of about $300,000 a year, though they apparently did not have capital of any very large amount. In the spring of 1892 they met with some large losses, but they continued in business, making large purchases and sales, and using the proceeds in their business, until about the 6th September, 1892, when the crisis came, the immediate cause being the refusal of further discounts at the banks at which they did business. The event showed that they were largely insolvent, and evidence was given on the part of the defendant tending to show that many purchases were made by them when they knew that they were insolvent, and would not be able to pay the price when it became due. These purchases, however, so far as the property in controversy is concerned, are not repudiated by the sellers, as the property here is sought to be reached by the defendant as the property of Boutilier & Co. The issue here is over the character and purpose of the sales from Boutilier & Co. to plaintiff. The plaintiff commenced the business of buying, sorting, and selling rags the latter part of May, 1892. He had then in money, according tp his testimony, the sum of $700, and he soon afterwards borrowed of his father, and used in the business, the sum of $2,450. From the time he started, up to the 6th September following, at various times, he purchased goods of Boutilier & Co., to the amount of about $23,700, paying therefor, in cash and merchandise, as the evidence tends to show, about the sum of $7,000, and the balance by notes, the most of which were on four months’ time, though there were some at two and three months. He purchased goods of other parties to the extent, as he testifies, of eleven or twelve thousand dollars. The notes given to Boutilier & Co. were used in their business, and those that became due prior to the seizure by the defendant of the property seem to have been paid. After September 16th and prior to January 1, 1893, notes to the amount of about $2,900 seem to have been paid; and the balance of the indebtedness for goods is, in amount, about equal to the value of the property in controversy. The plaintiff, after obtaining possession of his storehouse, continued to carry on the business, and was so engaged at the time of the trial, in October, 1893.

At the trial the court charged the jury that the questions for them to consider were: First, did the firm of Boutilier & Co. transfer their property to the plaintiff with the intention of defrauding their creditors? and, secondly, did the plaintiff accept the transfer, either knowing of that intent, or having reasonable cause to believe that the intent existed,—and that if either of these questions was found in the negative the plaintiff was entitled to their verdict. The defendant does not complain of -this presentment of the questions, but does claim that the verdict for the plaintiff is against the evidence. The question of fraud was one to be determined from a large number of circumstances, the bearing and effect of which might seem to be different to different minds. The fact, standing alone, that a large number of the sales to plaintiff were on credit, although plaintiff may have known that Boutilier & Co. were in failing circumstances, did not establish fraud. Loeschigk v. Bridge, 42 N. Y. 421; Buhl v. Phillips, 48 N. Y. 128. The jury had a right to believe from the evidence that the plaintiff, had he been let alone, would have paid for all that he bought, and that the price he agreed to pay for the goods was as much as, at the time, they were reasonably worth, and that all the proceeds were being used by Boutilier & Co. for the payment of their debts, without any reservation for their own individual benefit. The absence of any such reservation or expectancy would be a material element on the question of fraud, as well as of notice to plaintiff, The evidence, to say the least, does not make it clear that the plaintiff had any design to furnish Boutilier & Co. any secret benefit, or assist them in getting rid of their debts. The plaintiff, at the trial, presented an explanation to many of the circumstances upon which defendant relied as being suspicious, or as pointing towards fraud. The weight or force to be given these explanations was peculiarly within the province of the jury to determine, as they saw the plaintiff, and heard him testify, as well as the witness Baxter, who was said to have been the chief assistant of the plaintiff in the transactions. We have carefully examined the evidence, and we are of the opinion that there is no such preponderance in favor of the defendant as would justify us in disturbing the verdict. 4 Rev. St. (8th Ed.) p. 2593, § 4; Bulger v. Rosa, 119 N. Y. 459, 24 N. E. 853.

The defendant claims that the court erred in allowing the plaintiff to testify as to the reason why his brother-in-law, Baxter, helped him to keep his books. This, however, was proper, by way of explanation in regard to what had appeared on the cross-examination of the plaintiff by the counsel for the defendant.

A witness for the defendant, after having testified that he assisted in the weighing and appraisal of the stock in plaintiff’s warehouse in October, 1892; that the stock was piled in the rooms, and not classified according to grades; that there was no order observed as to the classifying of them at all; that he was accustomed to the manner of keeping goods of that character in storehouses, and knew how it is done in the trade,—was asked the question: “What is the custom in the trade in that respect?” This was objected to by the plaintiff as incompetent, and excluded, and exception taken. This is claimed to be error. It hardly needed evidence to show that the orderly conduct of the business required proper classification. The facts on the subject fully appeared, and it is not clear how any custom in the trade would make the matter better or worse. Besides, it had been previously shown by the defendant, without objection, that it was customary for rag dealers to. have the different grades of rags placed together by themselves in the storehouse) and it was subsequently shown by defendant, without objection, by another witness, who was a rag dealer, that “we try to keep the grade together, as much as we can, when we pile up the bales." There was no dispute on the subject. We fail to see in this ruling any good ground for a reversal. Our attention is not called to any other rulings. There was no exception to the charge, and there was no motion for a nonsuit.

It is suggested that the verdict was for the sum of $11,448.76, and that the judgment was entered on the basis that the verdict was for the sum of $11,948.76. A correction of the judgment is asked for. The verdict, as it appears in the appeal book in the clerk’s minutes of the trial, is the sum of $11,448.76. In the order denying the motion, on the minutes, for a new trial, it is recited that the verdict was for the sum of $11,948.76, and it is so recited in the judgment. It is also so stated in the statement in the printed case, under rule 41. At the sheriff’s sale on February 2, 1893, the property sold for $11,449, and under the charge the jury were allowed to take that as the measure of damages, with interest from February 2, 1893, to the time of the rendition of the verdict on October 24, 1893. This would make the verdict substantially as entered in the judgment. If the judgment, as entered, does not in fact conform to the verdict, the proper remedy is by motion to correct, and not by appeal. Leonard v. Navigation Co., 84 N. Y. 48, 56, and cases cited.

Judgment and order affirmed, with costs. All concur.  