
    The Third National Bank of Buffalo, Appellant, v. Lucien T. Cornes et al., Respondents.
    
      Court of Appeals,
    
    
      June 25, 1886.
    1. Question of fact.-—Where the question is one solely of fact, is decided by the referee in favor of the defendant, and reviewed by the general term with the same result, that conclusion, if entirely possible and reasonable upon some views of the evidence, must prevail.
    2. Issue. Not raised by pleadings.—The defendant is not called upon to meet and answer a cause of action, not only absent from the pleadings, but entirely inconsistent with their allegations.
    Appeal from a judgment of the general term of the supreme court, affirming a judgment for the defendants.
    
      Adelbert Moot, for appellant.
    
      F. R. Perkins, for respondents.
   Per Curiam.

The question in this case was solely one of fact. Whether the conveyance assailed was made with intent to hinder, delay and defraud the creditors of the grantor, or was made without such intent and in good faith, depended upon the circumstances surrounding the transaction, the credit to be given to the witnesses, and the inferences proper to be drawn. The question of fact decided in favor of the defendant by the referee was reviewed by the general term with the same result, and that conclusion, entirely possible and reasonable upon some views of the evidence, must prevail. We discover no question of law in the case unless it be over the contention that the conveyance may be deemed in trust for the benefit of the grantor beyond the cost of his support, and, as to the overplus, open to the assault of creditors. No such issüe was raised by the pleadings or in any manner tried; but, on the contrary, the theory of the complaint was that the deed was fraudulent . and void instead of being valid and good. The defendant was not called upon to meet and answer a cause of action not only absent from the pleadings, but entirely inconsistent with their allegations.

The judgment must be affirmed, with costs.

All concur.  