fore, an order to examine a judgment debtor is made by a justice of the Supreme Court to examine a debtor in another judicial district the order must be made returnable before a judge of that district, and the words "in that case" in 2434 do not alone refer to orders made for inferior judges, but are intended to embrace all orders to be made "before a justice of the Supreme Court." By § 2442 the referee must certify the evidence to the judge before whom the order is made returnable. This language would not be proper in the ordinary case of an order made in a county where the debtor resided by an officer therein.

Order reversed.

Opinion by Barnard, P.J.; Dykman and Cullen, JJ., concur.

FRAUDULENT CONVEY

ANCE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. Osander Bishop, applt., v. Caleb V. Stebbins et al., respts.

Decided July, 1886.

The fact that a conveyance covers all the property of the debtor is not conclusive evidence of a fraudulent intent. To successfully attack a transfer on the ground of fraud a fraudulent intent on the part of the purchaser must be shown. The transfers covered all the debtor's property, and were made for an adequate consideration. Out of the purchase price was retained the amount of a mortgage on the premises and a note which the purchaser had endorsed, both of which he assumed, a note for property sold to the vendor, and also the sum of $1,000, for assuming the care and support of a brother whose support was charged on

the vendor in the will under which he derived the property. Held, No evidence of fraud.

Appeal from judgment entered upon decision of Special Term.

Action by judgment creditor of Caleb V. Stebbins to set aside a conveyance of real estate and bill of sale of personal property as fraudulent and void as to creditors.

Plaintiff recovered judgment Feb. 2, 1883, on a debt which accrued Jan. 6, 1880. The transfers were made Dec. 21, 1881, by Caleb to his son Andrew, and covered all his property, consisting of a farm of 169 acres for $5,920, and personal property for $987; total, $6,907.

On the real estate was a mortgage for $1,550 which the purchaser assumed; one C. held a note for $158, signed by the vendor and endorsed by the vendee, which the latter assumed and afterwards paid; April 1, 1863, Andrew sold Caleb certain cows, etc., valued at $331, and a note was given therefor in 1870, which note was taken out of the purchase price. Caleb derived the principal part of his farm under the will of his father, of which he was executor. The will provided as follows: "I order and direct that my executor and his heirs maintain my son Warren Stebbins according to his rank and condition in life, provided the said Warren shall remain with said executor during said Warren's nat* But in case said ural life. * Warren shall depart from said executor, then the said executor is not to be accountable for anything on his account." Caleb entered into possession under this will and as

sumed the care and maintenance of Warren and provided for him down to the time of the transfer, when Andrew assumed his liabilities under the will and agreed to support and maintain Warren during his life, in consideration of $1,000, which was allowed on the purchase price, and Andrew gave a bond for performance of his agreement. At that time Warren was about 76 years of age and required extraordinary care and attention.

The Special Term found that the transfers were made for the purpose of paying just debts for services rendered and personal property sold, and for assuming the mortgage and the debt to C., and the liability by reason of the provision in the will to support Warren Stebbins, and that the transfers were made without any fraudulent intent; but found that the interest on the note from 1863 to 1870 was improperly included, and to that extent allowed plaintiff to recover.

H. L. Bronson, for applt. R. H. Duell, for respts. Held, That all the conclusions of fact were well supported by the evidence. The rule is that the determination of a question of fact will not be disturbed on appeal where there is no decided preponderance of evidence against the view adopted by the trial court. 23 W. Dig., 394. It was lawful for the debtor to pay his debts by a transfer of his property. 7 Hun,

449.

To successfully attack the transfers it was incumbent upon plaintiff to show a fraudulent intent on

the part of Andrew Stebbins, thepurchaser. 30 Hun, 79; 93 N. Y., 118. See also, 51 N. Y., 8; 57 id., 424.

When Caleb sold the farm he supposed, and as we think, correctly, 91 N. Y., 606; 79 id., 136; 100 id., 511; 28 Hun, 19; 82 N. Y. 270, that the burden (of the support of Warren) rested upon the farm and upon him, and he took care to have that obligation assumed by Andrew, and to secure the performance of the obligation took the bond of Andrew conditioned to discharge such liability and to indemnify him against it. We think the sum was reasonable, and that no fraud or fraudulent intent was evinced by the arrangement.

Warren was advanced in years, irritable and untidy in his habits, and required unusual care, support, maintenance and management. His expectancy of life was about four and one-half years by the Northampton tables; he lived some eighty-one weeks after the obligation was given by Andrew and was properly cared for, such care requiring valuable services and considerable expenditure. We are satisfied with the view the trial judge took of that branch of the case.

Morgan v. Potter, 17 Hun, 403; Pond v. Comstock, 20 Hun, 492, distinguished.

The vendor sold his property for an adequate consideration and in good faith. Though he had no other property the sale is not for that reason to be held fraudulent. 7 Hun, 591; 30 Hun, 79; 93 N. Y., 118. 118. That a debtor may prefer a creditor has been repeatedly held,

or may pay a bona fide creditor when insolvent, and even if it require the sale or transfer of all his property to satisfy an honest debt or liability. 30 Hun, 79; 48 Barb., 44; 5 East, 117.

The evidence given upon the trial presented a question of fact as to the note of $331. The facts The facts appear from interested witnesses. Some of the evidence was vague and contradictory. We cannot say that the finding in regard to the note is not supported by sufficient evidence properly interpreted. The credence to be given to the witnesses speaking in regard to it was considered, passed upon, and according to settled authority we ought not to disturb the result. 38 Hun, 71.

Andrew Stebbins bought the property in good faith in Dec. 1881, for a full and fair consideration, with no knowledge of or participation in any fraud, and he acquired by such purchase a good title, and his rights and equities in it (except as allowed by the trial court) are superior to those of plaintiff. 88 N. Y., 418; 100 id., 108. Judgment affirmed, with costs. Opinion by Hardin, P.J.; Boardman and Follett, JJ., concur.

PRACTICE.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Samuel B. Dick et al., respts., v. Charles Phillips, applt.

Decided Oct., 1886.

A peremptory order compelling production of books or papers for examination and

inspection cannot, under the present Code, be granted ex parte.

Appeal from Special Term order refusing to vacate an order of county judge directing defendant to be examined as an adverse party before trial, and to produce certain books and papers for examination and inspection.

Charles H. Brown, for applt.
Hamilton Ward, for respts.

Held, That that part of the county judge's order which directs. defendant to be examined is regular, and the Special Term properly refused to interfere with it. But that portion of it which directs the production of books and papers is improper. Under the present Code a party cannot be compelled to produce his books and papers for the examination and inspection of his adversary, before trial, except in the mode pointed out in Art. 4, Chap. 8 of the Code. The only order that can be made in the first instance is one directing the party against whom the discovery or inspection is asked to allow it, or in default thereof to show cause why it should not be done. That is, a peremptory order compelling a production of books or papers for examination and inspection, cannot be granted ex parte. The statute is intended to secure to the party proceeded against an opportunity to show cause against the granting of the application, and an order that deprives him of that right cannot be upheld.

The order is not authorized by S 853 and subd. 7 of § 872, of the Code. See 4 Abb. N. C., 241; 1 id., 350.

The part of the order requiring production of books and papers reversed; in all other respects the order is affirmed without costs of appeal.

Opinion by Smith, P.J.; Barker, Haight and Bradley, JJ., concur.

RAILWAY MORTGAGES.

TRUSTEES.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Nelson Merrill, respt., v. The Farmers' Loan & Trust Co., applt.

Decided Oct. 15, 1886.

Where the trustee named in a mortgage made by a railroad company to secure bonds issued by it voluntarily hands over the control and management of proceedings to foreclose the said mortgage to a majority of the bondholders, said trustee is liable to respond in damages to the holders of the remaining bonds if their interests shall be found to have been sacrificed by those to whom the business was committed by the trustee; but, in order to entitle plaintiff in an action against the

institute and conduct in its name a suit to foreclose said mortgage, and at the sale ordered therein the holders of the majority of the said bonds bought the road for $20,000.

Plaintiff was the owner of one of the remaining bonds and claimed. that his interests had been sacrificed by the manner in which the foreclosure suit had been conducted, and brought this action against defendant to recover damages therefor.

No evidence was given by plaintiff to show that the road could have been sold for a larger sum than $20,000 if the trustee had itself conducted the foreclosure; while, on the other hand, defendant gave evidence tending to prove that the road was not worth as large a sum as was paid for it at the foreclosure sale.

Herbert B. Turner, for applt. Abel E. Blackmar, for respt. Held, That defendant was liable to respond in damages to

while the strictest evidence of loss should not be required, some evidence should be given by plaintiff that the property could have been sold on better terms if the trustee had managed the forclosure proceedings, and, impartially and for the benefit of all bondholders, secured the making of the sale.

Appeal from judgment in favor of plaintiff entered on verdict and from order denying new trial.

Defendant was the trustee named in a mortgage made by the Milwaukee & Beloit RR. Co. to secure a series of bonds issued by it.

Upon the request of the holders of the majority of said bonds defendant allowed them to

been sacrificed by those to whom the management of the foreclosure suit had been committed. 24 Hun, 297. But, while the facts were such as would render defendant legally liable for any loss sustained by plaintiff as the owner of the bond secured by the mortgage, it was still necessary, before a recovery in the action could be had, that the amount and extent of this loss should be established by evidence reasonably approximating it so that it might be fixed and determined by the jury; and while as against defendant, after it had put the mortgage out of its hands and

control, the strictest evidence of loss should not be required, still some evidence at least should have been given by plaintiff to establish the fact that the property could have been sold on better terms if defendant had itself managed the proceedings, and impartially for the benefit of all bondholders secured the making of the sale. That proof that the property was of a larger value than the sum for which it was sold would have had a tendency to fulfill this legal requirement, but even that evidence was not produced, but the contrary was shown so far as the proof was given upon that subject. That as the evidence stood in the case the jury should not have been left at liberty, as they were, to conjecture or speculate upon the question of plaintiff's loss and arbitrarily determine, as that must have been done, the amount they should render as their verdict for plaintiff. Judgment and order reversed and new trial ordered.

Opinion by Daniels J.; Brady and Churchill, JJ., concur.

EVIDENCE. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Daniel F. Cridler et al., respts., v. Henry Colgrove, applt.

Decided Oct., 1886.

Where a defendant positively denied speaking certain words imputed to him by plaintiff, defendant's testimony detailing the conversations and interviews and giving his version thereof positively, and as positively denying the making of the promise testified to by plaintiff's witnesses, Held, error to charge the jury that

plaintiff's affirmative evidence is entitled to greater weight than defendant's negative testimony on the ground that plaintiffs, if their evidence is untrue, are guilty of perjury, whereas if defendant's testimony is untrue, it could only be said of him that he had forgotten. Such charge may have prejudiced defendant before the jury.

Appeal from judgment entered on verdict at Circuit and from order denying motion for a new trial.

Action to recover for services of C., B. and M., as physicians and surgeons in the treatment of P., a lad, defendant's nephew, who was run over by the cars and whose legs plaintiffs amputated. P.'s parents were living but had been divorced, and P. lived with his mother who was defendant's sister. At the time of the injury P. and his mother were visiting at her mother's house, and there plaintiffs' services were performed. Plaintiffs relied upon an oral promise of defendant to pay for their services, alleged to have been made on the second day after the injury and the day before the amputation, in a conversation between the three physicians and defendant in a bedroom off of the dining-room, at which no other person was present. Defendant testified that there were two bedrooms in the house, one off of the parlor, the other off of the dining-room. He first testified as to a conversation in the dining-room bedroom on Tuesday, at which Drs. C. and M., defendant and P.'s mother were present. Dr. B. had not then arrived. There was nothing then said about paying the physicians. Witness also testified