
    Mulford v. Yager et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    September 21, 1889.)
    1. Trial—Findings by Court.
    Where the court, under Code Civil Proo. NT. Y. § 1023, providing that it must determine the facts of the case which are submitted to it by either party, has found that certain conveyances are not fraudulent, it is not required to determine the truth of facts tending to show fraud.
    2. New Trial—Surprise—Discretion of Trial Court.
    The question of a new trial on the ground of surprise is largely within the discretion of the trial court.
    Appeal from special term.
    Argued before Learned, P. J., and Landon and Ingalls, JJ
    
      James B. Olney, for appellant. John J. Linson, for respondents.
   Learned, P. J.

This is an action brought by a receiver, appointed in proceedings supplementary, against John Yager, to set aside as fraudulent two conveyances,—one made by John Yager to Schoonmaker; and the other, of the same property, by Schoonmaker to -á#ma 0. Yager, John’s wife. The .ground is that the conveyances were made with intent to defraud the judgment creditor. The conveyances were made August, 1873; the judgment ■against John was recovered in January, 1876; the action had been commenced in September, 1873; and such recovery was for $155.12 damages, and $178 ■costs. The present action was commenced in September, 1885. On the trial, a jury was drawn, and evidence was given on -both sides. At the close of the case, the court, without objection, submitted to the jury the question whether the conveyances were made with intent to defraud. The jury found in the negative. The court thereupon found the formal facts of the recovery of the judgment, and the appointment of the receiver, and of the conveyances, and further found that the conveyances were not made with intent to defraud. The plaintiff asked the court to find nineteen propositions of fact, and five of law. The court declined to find on these propositions, on the ground that it had directed judgment on the verdict. Perhaps it should be more accurately said that the court had adopted the finding of the jury. This refusal to find is urged as error.

Assuming, for the present, that section 1023 applies to a case triable by the court, but in which a jury is impaneled to pass on some issues, still I am of the opinion that no error was committed. That section does not require a judge to find upon every piece of evidence offered, but to find upon facts put in issue. Looking over the propositions of fact which the plaintiff requested the judge to find, we shall see that, so far as they were material, they were matters of evidence which bore, or might be thought to bear, on the question ■of fraud in the conveyances. Of themselves they determined nothing. The facts on which the court is required to pass must be those which, when found, ■determine the result as a matter of law. When it is found as a fact that there was no intent to defraud in the execution of the conveyances, it follows, as a matter of law, that the plaintiff cannot recover. The numerous matters to which the plaintiff called attention in his 19 propositions—many of them— tended to show fraud. On the other hand, there were other matters in the •case which tended to disprove the intent to defraud. It is the part of the tribunal (judge or jury) which tries the case to settle the fact of fraud or no fraud, upon these conflicting matters; and the court is not called upon to find as to everything testified to, whether he found it to be true or false. It may not always be easy to draw the line between “facts” and “evidence,” as the words are used in legal matters. Sometimes, indeed, the word “facts” is used so as to include matters which are really but the evidence of the facts in issue. But I do not think that the section above cited was intended to require the judge to pass upon the truth of every piece of evidence to which either party should choose to call his attention. This would be intolerable, and of no use. I think, therefore, that there was no error in this respect.

On the merits of the case, after carefully looking at the whole testimony, I think we should not be justified in reversing the finding of the jury and of the trial court. The question of fraud, being purely one of fact, in such cases as the present, is best disposed of by the tribunal which has seen and heard the witnesses. It is true that there are some suspicious circumstances, but explanation of them is given; and the jury were satisfied that the transactions attached were honest. The question of a new trial on the ground of surprise must be largely one of discretion; and that discretion is generally better exercised by the judge who tried the case than by an appellate court. The judgment and order appealed from should be affirmed, with costs. All concur. 
      
       Section 1023. Before the cause is finally submitted tó the court or referee, or within •such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the .facts which he deems established by the evidence, and of the rulings upon questions of law which he desires the court or referee to -make. * * * At or before the time ■when the decision or report is rendered, the court or the referee múst note, in the margin of the statement, the manner in which each proposition has been disposed •of. * * *
     