
    Isaac Fenno et al., Pl’ffs, v. John W. Hannan, Sheriff, Def't.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    Fraud — Must be proved.
    In an action of replevin "based on false representations in procuring credit on the sale of goods, the court on the first trial set aside a verdict for plaintiffs as against the evidence, "which order "was affirmed, and on the second trial a verdict "was directed for defendants. Held, that the evidence being as consistent "with the innocence as the guilt of defendants, there was no error.
    Motion by plaintiffs for a new trial upon a case and exceptions in a cause tried at the Monroe circuit, ordered to be heard at general term in the first instance.
    
      Fanning & Williams, for pl’ffs; Perkins & Hays, for deft.
   Corlett, J.

This is an action of replevin commenced in December, 1886. The plaintiffs were wholesale clothiers in Boston, Mass. They sold the clothing in question of the value of about $8,000 to Michael H. Carroll, of Rochester, who afterwards made an assignment to the defendant, Thomas H. Groves, with preferences. The complaint alleges that the goods were obtained by the fraud of Carroll The assignee did not answer and the sheriff justified his levy by virtue of an execution upon a judgment against Carroll in favor of the firm of Wile, Brickner & Wile. The action has been twice tried; the first before Justice Macomber and a jury. A verdict was rendered for the plaintiffs; the trial justice set aside the verdict and granted a new trial as against the weight of evidence, on payment of costs, which was affirmed on appeal to this court. 18 FT. Y. State Rep., 659. The defendants paid the costs, and the action was again tried before Justice Rumsey and a jury. At the close of the evidence the trial justice directed a verdict for the defendants, and ordered the exceptions to be heard here. Wlien the case was before the court after the first trial, Justice Barker, who delivered the opinion, reached the conclusion that the, evidence required a submission of the case to the jury, but states that a new trial should be granted, because of an error in one of the rulings to which exception was taken. .A majority of the court, however, agreed with the trial justice, and his decision was affirmed, which involved a payment by the plaintiffs of the costs of trial. This was entirely inconsistent with the granting of a new trial because of error in setting aside the verdict as against evidence or on exceptions.

Carroll carried on business in Main street in Rochester from. 1880 until he assigned in 1886. His trade was retail and he had always been a debtor of the firm of Wile, Brickner & Wile, and purchased goods from them from time to time. His inventory in the early part of 1886 seems to have amounted to over $11,000. He also owed a sister upwards of $900. "He seems to have been in fair credit, able to purchase all the goods he wanted in his business, until about the time of his failure.

Much evidence was given on the part of the plaintiffs tending to show, as they claim, that he made false and fraudulent representations as to his assets and liabilities, on the strength of which they allege they sold him goods on credit. The defendant denies this and presents his version of his dealings. All the witnesses were seen by the two trial justices; each listened to the evidence;. saw the witnesses, and had a good opportunity of forming correct conclusions; each, after all the evidence had been given, reached the conclusion that fraud had not been established. The justice who heard the case the first time allowed it to go to the jury, but set aside the verdict on the ground that the evidence did not warrant the verdict. On the second trial the trial justice refused to submit the case to the jury.

A detailed review of the evidence would not be profitable or instructive. An examination of it, however, does not produce the conviction that either of the learned justices fell into an error. A majority of the court did not concur with Justice Barker.

It is a familiar rule that where fraud is alleged, it must be proved. Jaeger v. Kelley, 52 N. Y., 274; Parker v. Conner, 93 id., 118; Stearns v. Gage, 79 id., 102 ; Macullar et al. v. McKinley, 99 id., 353; Arthur v. Griswold, 55 id., 400.

Where the evidence is equally consistent with innocence and guilt, the former interpretation must be given. Morris v. Talcott, 96 N. Y., 100.

The evidence in the case at bar is certainly quite as consistent with innocence as guilt.

The motion for a new trial must be denied.

Dwight, P. J., and Macomber, J., concur.  