Rutherford v. Schattman

• Citation: 23 N.E. 440,119 N.Y. 604
• Parties: RUTHERFORD v. SCHATTMAN et al.
• Decision Date: 14 January 1890
• Court: New York Court of Appeals

119 N.Y. 604

23 N.E. 440

RUTHERFORD

v.SCHATTMAN et al.¹

Court of Appeals of New York.

Jan. 14, 1890.

Appeal from general term, fifth department.

J. F. Parkhurst, for appellant.

Rudolph Sampter, for respondent.

PECKHAM, J.

This action was brought by the plaintiff, as assignee of one Morris Schattman, of Bath, in this state, to set aside a confession of judgment made by Schattman in favor of the defendant Auguste Schattman, on the ground that the same was fraudulent. An examination of the evidence shows that the ground of the alleged fraud was the claim that there was no such indebtedness existing from Morris to Auguste Schattman as was stated in the confession of judgment, and also that the judgment was the result of a general conspiracy to defraud the creditors of Morris Schattman. The question of fact was submitted to the trial court. The decision was in favor of the defendant, thus negativing any fraud in the judgment of confession, or any conspiracy as alleged in the complaint. The trial court thought the plaintiff's action was so manifestly without any reasonable basis for its support that the plaintiff was guilty of mismanagement and bad faith in bringing it, and the complaint was therefore dismissed, with costs to be paid by the plaintiff personally. From the judgment entered upon this decision the plaintiff appealed, and the general term, after a hearing, modified the judgment by directing the costs to be paid out of the assigned estate, and, as so modified, it affirmed the judgment, without costs of appeal to either party. The plaintiff has appealed to this court from the judgment affirming the dismissal of the complaint, while the defendant Auguste Schattman has appealed from the modification of the judgment, as to costs, made by the general term.

The case shows there was an abundance of evidence given on the part of the defendant Auguste Schattman to sustain her contention that the judgment by confession was entered to secure a bona fide debt owing from Morris to her, for the full amount of such judgment. The finding of the trial court is binding upon us, as it has been affirmed by the general term. The counsel for the plaintiff insists, upon this appeal, that the trial court erred in its finding of fact that the fraudulent conspiracy was not proven, and he says that the reason of such error was that the court misunderstood the effect to be given to the evidence of Morris Schattman, of Bath, a witness called by the plaintiff, and who was alleged to be a party to the alleged fraud, and one of the alleged conspirators. In regard to this witness the court said, in an opinion which accompanied its final decision, that a party placing a witness on the stand, and examining him as to material matters, by doing so vouches for his witness that he is a man of good character and a credible witness, and worthy of belief. If it be assumed that the rule, as laid down by the trial court in the opinion, was too broad and general, (as to which see Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701,) we do not see how this court can interfere. The trial court has found that there was no fraud or conspiracy, by finding that the judgment was confessed to secure the payment of an honest debt, and there is abundant evidence to support such finding. If, in reaching such conclusion, the court gave undue weight to testimony denying the fraud, and not sufficient to that which tended to prove it, if there were any, the general term could have remedied that error if it thought that it...