Brayton v. Sherman

• Decision Date: 14 January 1890
• Citation: 23 N.E. 471,119 N.Y. 623
• Parties: BRAYTON v. SHERMAN.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 623

23 N.E. 471

BRAYTON

v.SHERMAN.¹

Court of Appeals of New York.

Jan. 14, 1890.

Appeal from supreme court, general term, third department.

Action by George W. Brayton, individually and as assignee for the benefit of the creditors of John A. Sheldon and Thomas Lawlover, insolvent debtors, against Darwin W. Sherman, executor, etc., of Augustus Sherman, deceased, and others, to recover the value of certain assets transferred by said debtors to defendant's testator. Defendant Sherman appeals from a judgment of the general term modifying and affirming a judgment of the special term for plaintiff.

Esek Cowen, for appellant.

C. S. Enches, (L. H. Northup, of counsel,) for respondent.

PECKHAM, J.

I have looked in vain in this case for some evidence that the accounts alleged to have been transferred to A. Sherman were the property of the firm of Sheldon & Lawlover. This was a necessary fact to be proved in order to enable the plaintiff to maintain this action. Nor do I find any evidence of the transfer of any accounts by Sheldon & Lawlover or Lawlover to Sherman. The witness who first testified upon this subject was asked this question: ‘About the 2d of June did the firm of Sheldon & Lawlover transfer to Mr. Sherman a list of accounts,-a quantity of accounts?’ The question was objected to, as calling for a conclusion of the witness, and that, if in writing, the writing should be produced. The objection was overruled, and the witness answered, ‘Yes, sir.’ The objection was good, and should have been sustained. The subsequent examination of the witness showed that he was himself deciding what amounted to a transfer, and he showed that, so far as he knew, there was no writing, and that what he called a transfer was simply a list of accounts, appearing, as he said, upon the books of Sherman, the vendee, which list he (the witness) had copied from the books, and this list was admitted in evidence under objection that the books themselves were the best evidence. The list was nothing but a statement of the names of individuals, with an amount of money set opposite each name. Finally, the witness said that the list was not transferred by Sheldon & Lawlover, but he thought it was transferred by Lawlover. It does not appear that he had the slightest knowledge on the subject, or that his opinion, even, was based upon any other fact than the presence of this list on the books of the vendee or assignee Sherman.

We do not think that the error committed in the attempt to prove the assignment by proving the contents of Sherman's books without producing them was in any way remedied by the testimony of the defendant Sherman, the executor of the deceased Sherman, the alleged transferee. The defendant said he had tried to collect the amounts specified in the list which had been transcribed from the books of the deceased Sherman, and found some of them worthless. This did not prove the assignment to Sherman of such accounts, nor did it make any admission of such assignment. Nor does the plaintiff prove by the defendant Sherman, by any other part of his evidence, any assignment by the firm of Sheldon & Lawlover to A. W. Sherman. He testifies that he (witness) agreed to pay $500 excise money owed by Lawlover, and that Lawlover assigned the accounts to the witness, which were taken to repay the witness. It was by evidence of an assignment...