
    (86 Hun, 360.)
    McCONNELL v. BARBER et al.
    (Supreme Court, General Term, Fourth Department.
    May 4, 1895.)
    1. Appeal—Review—Weight op Evidence.
    A verdict rendered on conflicting evidence will not be disturbed on appeal, unless the findings of the trial court are against the weight of evidence or the proof clearly preponderates in favor of a contrary result.
    2. Fraudulent Conveyances—Consideration—Debt Barred by Limitation.
    In an action to set aside a deed as in fraud of creditors, the fact that the consideration for the conveyance was a debt barred by limitation is a circumstance which may be considered in determining the question of good faith, but it is not controlling.
    3. Same—Compound Interest.
    The fact that part of the consideration for a deed is compound interest does not render the deed void as to creditors, where no agreement for compound interest was made in advance.
    
      Appeal from special term, Cortland county.
    Action by Loretta McConnell against George F. Barber and Marcellie I." Barber to set aside a deed as in fraud of creditors. The complaint was dismissed, with costs, and plaintiff appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    B. T. Wright, for appellant.
    E. D. Crosley and T. E. Courtney, for respondents.
   MARTIN, J.

This was an action in the nature of a creditors’ bill. Its purpose was to set aside a deed given by George F. Barber to the defendant Marcellie I. Barber. The defendants were husband and wife. The special term found that the deed was made in good faith, without any intent to hinder, delay, or defraud the creditors of George F. Barber, the judgment debtor; that it was based upon a good and sufficient consideration; held that the conveyance in question was valid; and directed a judgment accordingly, with costs. The appellant contends that the findings of the trial court were against the weight of evidence, and should not be upheld. A thorough and careful examination of the evidence discloses that the question of the intent with which the conveyance under consideration was made was one of fact to be determined by the trial court. While there were circumstances which, unexplained, might have justified the court in inferring that the transfer was fraudulent, yet, if the court gave credit to the evidence of the defendants and their witnesses, it was sufficient, we think, to justify the decision of the trial court. Where a review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court. Yet great consideration will be accorded to its opinions, especially where there is evidence on both sides, and the mind of the court has been called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the appellate court is not warranted in reversing upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course, it should appear that the findings of the trial court were against the weight of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its conclusion. Westerlo v. De Witt, 36 N. Y. 340; Crane v. Baudouine, 55 N. Y. 256; Sherwood v. Hauser, 94 N. Y. 626; Baird v. Mayor, etc., of City of New York, 96 N. Y. 567; Lowery v. Erskine, 113 N. Y. 52, 20 N. E. 588; Devlin v. Bank, 125 N. Y. 756, 26 N. E. 744; Barnard v. Gantz, 140 N. Y. 249, 35 N. E. 430. Applying the doctrine of these authorities to this case, we think the findings of the special term should not be disturbed.

The fact that the indebtedness to the wife of the judgment debtor, which was the consideration for this transfer, was barred, by the statute of limitations, and had been standing 27 or 28 years without the payment of any interest thereon, was a circumstance to be considered by the trial court in determining the question of good faith; but it was not controlling, as the statute of limitations might be waived and the transfer be valid as to creditors. Bump, Fraud. Conv. 220.

The appellant also insists that, as the consideration for this transfer consisted to a great extent of compound interest, it was invalid. In Stewart v. Petree, 55 N. Y. 621, 623, Alien, J., said:

“But a prospective agreement, after the interest has accrued, to pay interest thereon, is valid, and money paid for compound interest cannot be recovered back. So, too, a security for interest upon interest, given after it has accumulated, and in the absence of any prior undertaking to pay it, is valid, and supported by a good consideration.”

At its last term, in a case in which no opinion was written, this court held that a note, payable in future, given for compound interest, was valid, and could be enforced. Following the doctrine of these authorities leads to the conclusion that, if the transaction between the defendants was free from actual fraud or fraudulent intent, the consideration was sufficient to uphold the conveyance in question. Although it must be admitted that if the consideration for this transfer was fictitious, and consequently fraudulent, and such fraud was participated in by both parties, it would be void, yet, as in this case the court has, upon sufficient evidence, found that the consideration was not fictitious, or the transfer fraudulent, that principle has no application.

We are of the opinion that the evidence was sufficient to sustain the findings of the trial court, and the judgment should be affirmed. Judgment affirmed, with costs. All concur.  