Opinion
February, 1894.
D.M. Porter, for respondents.
A. L. Levy ( D.E. Anthony, of counsel), for appellants.
After both sides had concluded their introduction of evidence, and when the cause was about to be submitted to the jury, it appeared that plaintiff had accepted the transfer to him of the judgment debtor's store and its contents, before the seizure thereof and levy thereon by the marshal to whom the execution was directed, without further consideration than his oral promise to discharge certain specific demands against the judgment debtor, which aggregated $500; and plaintiff's recovery in this action is now assailed upon the ground that the promise to pay the demands was within the Statute of Frauds, and void because not in writing, and that the undisputed evidence, therefore, shows that no consideration whatever was paid for the transfer; and hence that it was conclusively fraudulent as against creditors of the judgment debtor.
This contention, however, is without merit. Plaintiff's promise was enforcible against him as an original one, made upon an independent consideration, beneficial to him, and devolving the obligation to pay the demands as agreed. White v. Rintoul, 108 N.Y. 222, 227.
The evidence shows that the defendants actively participated, and directed the marshal in the seizure of and levy upon the store and contents. This constituted them trespassers equally with the marshal, and subjected defendants to joint and several liability therefor ( Dyett v. Hyman, 129 N.Y. 351); and upon a charge to which no exception was taken the learned trial judge fairly submitted the question of the bona fides of the transfer of the store, and of defendants' participation in its seizure, to the jury, whose determination upon a mere conflict of evidence we are not authorized to disturb. Besides, when the introduction of evidence for both sides was at an end defendants did not ask that the complaint be dismissed or a verdict be directed in their favor. Hence, they should now be precluded from questioning the sufficiency of the evidence for submission to the jury. Bennett v. Levi, 46 N.Y. St. Repr. 754. If it was error to deny defendants' motion to dismiss the complaint when plaintiff rested the evidence thereafter adduced by either party obviated it. Meyers v. Cohn, 4 Misc. 185.
Plaintiff was asked on direct examination "Did you have any transaction with Mr. Lindahl about the 21st of July, 1892?" No exception was taken to the overruling of an objection by defendants' counsel, and the objection itself was invalid because no ground therefor was stated. Cruikshank v. Gordon, 118 N.Y. 178, 186. The motion to strike the answer out also fails to present any ground therefor, and was addressed to the discretion of the court because no valid objection to the question was made. Platner v. Platner, 78 N.Y. 90, 101. It was competent to plaintiff to show payment of the demands agreed to be paid by him. The exception, therefore, to the question on plaintiff's direct examination, "What was done by you with reference to the debts to the other persons, other than yourself?" is unavailable. The question did not call for the narration of a conversation with any person, as contended. An objection to an answer of the witness, without a motion to strike the answer out, does not present error. Hence the exception based upon an objection to Lindahl's testimony as to why he made the transfer to plaintiff is invalid. Platner v. Platner, 78 N.Y. 90, 101. The objection to the question asked of Lindahl, to state what goods the marshal took, and their value, specifies no ground. It was competent for plaintiff to show that the marshal entered his store with the intention of seizing it under the process directed to him, as well as that the demands which plaintiff had agreed to pay in consideration of the transfer of the store to him were actual and subsisting.
The objections, therefore, to the introduction of this evidence present no error.
The judgment and order should be affirmed, with costs.
BOOKSTAVER and PRYOR, JJ., concur.
Judgment and order affirmed, with costs.