Becker v. Koch

Decision Date01 March 1887
PartiesBECKER and others, Assignees, v. KOCH, Sheriff, etc.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Charles B. Wheeler, for appellant.

Baker & Schwartz, for respondents.

PECKHAM, J.

This action was brought by the plaintiffs, as assignees for the benefit of creditors of one Exstein, to recover from the defendant the possession of some personal property, amounting in value to about $4,000, or, in default thereof, to recover such value. The defendant justified the taking of the property by virtue of a writ of attachment issued to him as sheriff of Erie county in an action in which Victor and others were plaintiffs, and Exstein was defendant, and under which writ the sheriff had levied upon this property as belonging to the said Exstein. The assignment to plaintiffs was made on the seventeenth of October, 1883, and included the property in question. The attachment was, on the fourteenth of November, levied on the property, and, after the plaintiffs in the attachment suit recovered judgment against Exstein, the property was sold on an execution issued thereunder to the defendant. The answer in this action set up these facts, and alleged that the assignment to the plaintiffs was made with the intent, on the part of Exstein, to hinder, delay, and defraud his creditors. The action came on for trial in the superior court of Buffalo, and, after the evidence was all in, the court directed a verdict for the plaintiffs for a return of the property to them, or for the value thereof, assessing the same at $3,800. A stay of proceedings was granted, and the defendant's exceptions were ordered to be heard at the general term in the first instance.

The general term, after argument of such exceptions, overruled the same, and directed judgment for the plaintiffs on the verdict. Thereupon an order was entered which in form treated the defendant as having made a motion for a new trial on the exceptions ordered to be heard in the first instance at general term, and, after reciting such fact, continued thus: ‘Ordered, that such motion be, and the same hereby is, denied, with costs; that the said exceptions be, and the same hereby are, overruled, and judgment for the plaintiffs on the verdict is hereby ordered.’ Judgment in accordance with the order was subsequently entered. The defendant then appealed from the order above mentioned to this court, and also from the judgment entered upon such order.

The plaintiffs now make the claim that the appeal from the order should be dismissed, and that the appeal from the judgmentbrings up nothing for review but the question whether the judgment appealed from is in accordance with the order of the general term, as there was no statement in the appeal from the judgment that the appellant intended to bring up for review any intermediate order, as pointed out by sections 1301 and 1316 of the New Code. There is no foundation for the claim. The exceptions of the appellant were ordered by the trial court to be heard, in the first instance, at the general term, and it was pursuant to such direction that the argument of such exceptions was then had, and the decision of the court upon such argument was made in the form ofan order, and that order was simply a written authority upon which to enter the judgment, and was not such an intermediate order as is referred to in section 1301 or 1316, and no appeal would lie from it to this court. But, after the entry of judgment, an appeal from such judgment brings up for review the exceptions taken by defendant upon the trial. The appeal taken by defendant from the order, as well as from the judgment, was useless, but evidently taken from more abundant caution; and, if that were the only appeal in the case, it would have to be dismissed as unauthorized; and yet, as it is taken in connection with the appeal from the judgment, which brings up all the exceptions for review, there is no necessity to formally dismiss the appeal from the order.

But upon the merits of the appeal quite an important question arises in relation to the law of evidence. The court directed a verdict for the plaintiffs; and if, therefore, there was evidence enough to authorize a submission of the question of fraud to the jury, the judgment must be reversed. We think there was, and, had it not been for the rule of law adopted by the court below, we suppose that court would have been of the same opinion. That rule was that, as the defendant called a witness by whom he attempted to prove the fraud, and as that witness denied it, the defendant was bound by that denial, in the absence of contradiction by some other witness, even though the jury might think some parts of the evidence of the witness clearly showed its existence. To show exactly how the question arose, and what was decided by the court, some reference must be made to the testimony, although it will be unnecessary to allude to it all.

The assignor, Exstein, was a merchant engaged in a large business in Buffalo. He kept regular books of account in his business, which were produced upon the trial, and he was called as a witness for the defendant, and gave evidence in relation to the books, and upon other matters. His assignment was made on the seventeenth of October, and on the sixteenth of that month he made entries in several accounts which he kept, crediting quite large sums of money to the different persons named in such accounts, the result of which entries was to cause it to appear by the books that the assignor was in their debt to a somewhat large amount, while if the entries as of the sixteenth of October were stricken out it would then appear that the parties, instead of being creditors, were in reality debtors, of the assignor. When on the stand, he substantially stated that, if those entries were stricken out, the state of affairs between himself and those persons would be as represented in the books; or, in other words, that, excluding those entries and the circumstances upon which they rested, some of these persons would be his debtors. He also said that these entries did not in fact represent any actual transaction occurring at the time when they were made, and that no valuable or other consideration passed between him and those parties at such time. Stopping with these facts, it would appear, then, that credits were given these persons the day before the assignment, upon which some of them drew out moneys from him, and upon the basis of which one was made a preferred creditor in the assignment, and yet such entries represented no actual, present transactions happening at the time when they were made. Unexplained, it would appear that as a result Exstein had provided for the payment of large sums of money, or had already, and in view of his assignment, paid such sums to persons whom he did not owe; or, in other words, he had paid, and also made provision in his assignment for the payment of, fictitious debts.

The defendant, however, proceeded with his examination of this witness, and asked for an explanation of these entries, and the facts or circumstances upon which they were based, and the witness proceeded to give it. The explanation was, if true, sufficient in law, and showed that he did owe the persons the amounts he claimed to, with the possible exception of one or two cases in which the defendant claims that, even on the basis of the general truth of the explanation,...

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    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...still be authorized to place the proper estimate on it." [See also, Spencer v. Anderson (Mo. App.), 229 S.W. 226; Becker v. Koch, 104 N.Y. 394, 10 N.E. 701, 58 Am. Rep. 515; Dumas v. Clayton, 32 D.C. App. 566, 574; Krull v. Arman, 110 Neb. 70, 192 N.W. 961, 962; Campbell v. Berryman, 256 Fe......
  • Smith v. Ohio Millers' Mut. Fire Ins. Co.
    • United States
    • United States State Supreme Court of Missouri
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    ...... or jury will still be authorized to place the proper estimate. on it." [See also, Spencer v. Anderson (Mo. App.), 229 S.W. 226; Becker v. Koch, 104 N.Y. 394, 10 N.E. 701, 58 Am. Rep. 515; Dumas v. Clayton, . 32 D. C. App. 566, 574; Krull v. Arman, 110 Neb. 70,. 192 N.W. 961, ......
  • Agudas Chasidei Chabad of United States v. Congregation Lubavitch, Inc.
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2020
    ...the use of leading questions. However, a party may not impeach the credibility Page 44 of such witness whom he calls (see, Becker v. Koch, 104 NY 394, 10 N.E. 701; unlessthe witness made a contradictory statement either under oath or in writing (see, Jordan v. Parrinello, 144 AD2d 540, 541,......
  • Agudas Chasidei Chabad of the U.S. v. Congregation Lubavitch, Inc.
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2020
    ...by the use of leading questions. However , a party may not impeach the credibility of such witness whom he calls (see , Becker v. Koch, 104 NY 394, 10 N.E. 701 ; unless the witness made a contradictory statement either under oath or in writing (see , Jordan v. Parrinello, 144 A.D.2d 540, 54......
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38 books & journal articles
  • Witness examination
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • August 2, 2015
    ...a party has died, or knowledge about what happened is otherwise peculiarly within the province of another party or agent. Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); Cornwell v. Cleveland, 44 A.D.2d 891, 355 N.Y.S.2d 679 (4th Dept. 1974). A typical example of this situation is when a ......
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    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...a party has died, or knowledge about what happened is otherwise peculiarly within the province of another party or agent. Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); Cornwell v. Cleveland, 44 A.D.2d 891, 355 N.Y.S.2d 679 (4th Dept. 1974). A typical example of this situation is when a ......
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    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...a party has died, or knowledge about what happened is otherwise peculiarly within the province of another party or agent. Becker v. Koch , 104 N.Y. 394, 10 N.E. 701 (1887); Cornwell v. Cleveland , 44 A.D.2d 891, 355 N.Y.S.2d 679 (4th Dept. 1974). A typical example of this situation is when ......
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    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...a party has died, or knowledge about what happened is otherwise peculiarly within the province of another party or agent. Becker v. Koch , 104 N.Y. 394, 10 N.E. 701 (1887); Cornwell v. Cleveland , 44 A.D.2d 891, 355 N.Y.S.2d 679 (4th Dept. 1974). A typical example of this situation is when ......
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