
    Boyle v. Williams.
    (New York Common Pleas — General Term,
    November, 1892.)
    An appeal from a judgment brings up for review, simply the exceptions taken to the rulings on the trial.
    In an action for conversion, the answer was a general denial. Held, that proof of plaintiff’s title by bill of sale, and a sale of the same by defendant and retention of the proceeds after demand and before suit, authorized a verdict for plaintiff and a denial of a motion to dismiss the complaint. Defendant attempted to show that the consideration for the bill of sale had failed, and that the bill of sale was an unlawful preference under "chapter 503, Laws 1887, relating to general assignments for benefit of creditors. The trial judge excluded the evidence and refused to dismiss the complaint upon the ground that said defenses appeared in evidence. Held, no error.
    The question “Did you take possession of these goods as assignee” is. objectionable as calling for a conclusion.
    Appeal from a judgment in favor of plaintiff entered upon a verdict directed by the court.
    Action by Boyle & Co. to recover the value of personal . property alleged to have been converted by the defendant.
    
      De Witt C. Morrill, for plaintiffs (respondents).
    
      Arthur H. Ely, for defendant (appellant).
   Bischoff, J.

The appeal is from the judgment and not from an order entered on defendant’s motion for a new trial, and we are, therefore, to consider only the exceptions taken on behalf of the appellant to the rulings on the trial. Peil v. Reinhart, 127 N. Y. 381.

The plaintiffs sought to recover the value of certain chattels alleged to have been converted by the defendant, and the complaint contained all appropriate allegations essential to such an action. The answer, besides the defense that defendant had possession of the chattels by virtue of certain liens of which no evidence was sought to be given and which was abandoned on the trial, was a general denial.

On the trial, plaintiffs introduced in evidence a bill of sale to them, made by one John Sanderson, which contained an absolute transfer of all goods on storage ” at the time belonging to him, and from a stipulation made for the purposes of the trial, and the testimony of plaintiffs’ witnesses it appeared without contradiction, that the goods alleged to have been converted by the defendant were part of the goods on storage,” and worth the amount for which judgment was directed; that subsequent to the bill of sale defendant took possession of the goods; that he refused to deliver them after due demand before the commencement of the action; that he sold them and received and retained the proceeds of such sale. Surely these facts authorized the verdict directed, and the motions for dismissal of the complaint made when plaintiff rested and again upon the close of the evidence for both sides, were properly denied.

The efforts of defendant’s counsel on the trial were exclusively directed to an attempt to show that the bill of sale was made to the plaintiffs in consideration of their promise to pay certain debts of John Sanderson, in which respect they had failed, and that the bill of sale was an unlawful preference under chapter 503, Laws of 1887, relating to general assignments for the benefit of creditors. But as neither of these defenses attempted on the trial was within the issues created by the pleadings, the learned trial judge’s exclusion of evidence relating to them, and his refusal to dismiss the complaint upon the ground that these defenses appeared in evidence, cannot constitute error.

One other exception remains to he noticed. Defendant, examined as a witness for the plaintiff, was asked on cross-examination: “Did you take possession of these goods as assignee ? ” to which plaintiffs’ counsel objected on the ground that the question called for a conclusion. The objection was sustained, and we think that no argument is required to establish its validity. Whether defendant took possession of the goods alleged to have been converted by him in his individual or representative capacity was clearly a fact deducible only from the circumstances attending his taking of possession, and so a conclusion.

Judgment affirmed, with costs.

Daly, Ch. J. and Pryor, J., concur.

Judgment affirmed.  