Argued June 12, 1896
Decided October 13, 1896
John E. Parsons and J. Hampden Dougherty for appellants. Alexander B. Simonds and William C. Beecher for respondents.
The most serious question that arose in this case was the question of fact in relation to the fraud alleged to have been perpetrated by the judgment debtor and his wife against the creditors of the former. A careful examination of the record has convinced us that the affirmance by the General Term of the facts found by the trial court has placed that question beyond our reach, for it cannot be seriously contended that there is no evidence to support the findings of fact. ( Crim v. Starkweather, 136 N.Y. 635.) The only question requiring the expression of consideration is whether a portion of the books of Mr. Benjamin was competent evidence for the plaintiffs as against Mrs. Benjamin and the assignee, both of whom objected to the same as incompetent, and each separately excepted when the objection was overruled. The question arose in this way: Mr. Benjamin, who by his answer had put at issue all charges of fraud, was called by the plaintiffs as a witness and examined by both sides at great length, and during his examination a paper marked "Exhibit 8" was produced and put in evidence. This paper purported to be a statement of the dealings between Mr. Benjamin and his wife, commencing October 3d 1863, and ending April 18th, 1892. It occupied fifty printed pages of the appeal book, and he testified that it consisted of original entries from the year 1880 onward, and that the entries prior to that date were copied from another paper of original entries that had not been preserved. It supported the theory of the defendants as to the amount of Mrs. Benjamin's claim against her husband and tended to show that he was indebted to her, not only to the full amount of the note and judgment, but also in a large balance besides. As the issue of fraud depended mainly upon the honesty of her claim, it became important to thoroughly test this statement and see if it was reliable. For this purpose, among others, the books of Mr. Benjamin, kept in due form according to commercial usage, were put in evidence by the plaintiffs, so far as they contained entries relating to his transactions with his wife. They tended to show that said statement, Exhibit 8, was largely fictitious, and that it was fraudulently manufactured by him to use as evidence in her favor for the purpose of proving that he owed her a much larger amount than was the fact. Mrs. Benjamin and the assignee contend that it was error to admit this evidence for any purpose, and especially for the purpose of impeaching her claim, because it did not appear upon the books.
Courts scrutinize with the utmost care business transactions between husband and wife alleged to be fraudulent as against creditors, because fraud is so easily practiced and concealed under cover of the marriage relation. Fraud is one of the broadest issues known to the law, for it can seldom be proved by direct evidence, but is dependent upon circumstances which, separately considered, may be quite immaterial, but when combined are not only material but have great persuasive force. (1 Wheaton's Ev. § 33.) The facts in an issue of commercial fraud are frequently drawn with difficulty from hostile witnesses, whose effort is to conceal as much and reveal as little of the truth as their conscience and skill will permit. When the witness is a party his testimony may be rebutted by other evidence introduced by the party in whose behalf he was called. (Code Civ. Pro. § 838.) Upon the trial of an issue, such as that now under review, much latitude has been allowed in modern times, not only as to the method of examination, but also as to the substance of the evidence itself. (Bump Fraud. Conv. 579; Story Eq. Jur. § 190.) In determining whether a given transaction was fraudulent, courts carefully look at the ordinary transactions of the person charged with fraud, and especially at such entries upon his books, bearing upon the subject in hand, as were made at a time when he could have had no object in manufacturing evidence. Accurate bookkeeping should present a complete history of a man's business affairs, and the entries made in the ordinary course of his business are regarded as acts and not as mere declarations. While they are not received in an ordinary action at law to recover a debt, except under peculiar circumstances, or as against the party who kept the books, in an action in equity, and especially upon the trial of what are known as "creditors' actions," they are admitted not only against the judgment debtor, whose transactions they are supposed to record, but also against those deriving title to property from him, as to such entries as were made while such property was still in his possession. The absence of entries required by commercial usage, especially when transactions with other parties, similar to those in question with the parties before the court, are duly entered, is regarded as a competent fact, whenever the entries themselves, if duly made, would have been competent. Although the books are not competent as against a creditor seeking to recover a judgment for his debt, they may be introduced by a judgment creditor to support an attack in equity upon the transfer of property by the judgment debtor to a third person, claiming a valid debt as the consideration for the transfer. Entries made in the ordinary course of business, while the debt in dispute was in process of contraction, are competent as to another creditor, for the purpose of showing that there was no such debt, or that it was materially less than the amount claimed. While such evidence is not conclusive, it has a bearing upon the question of the intent and good faith of the judgment debtor, as it shows how he acted or failed to act with reference to a principal fact. If the transfer attacked is defended as a preference given in consideration of a precedent debt, and it appears that the debtor in the common course of business did not regard or treat the alleged debt as genuine, it bears upon his honesty in making the transfer. Any evidence tending to establish that fact would be competent, not only as against himself, but also as against those standing in his shoes, for the motives of both parties to the acts effecting the preference are open to inquiry. Unless both acted in good faith, the preference, under ordinary circumstances, cannot stand. The good faith of the debtor, therefore, is an important element in the title of the person accepting the preference. If his acts, such as the deliberate record made in his own books, show that he thought there was no such debt, or that it was materially less than was subsequently claimed, they may be received upon the question of fraudulent intent. Where, as in this case, the most intimate relation of life existed between the alleged debtor and creditor, and the former did all the business for both, and was in fact the commercial alter ego of the latter, the entries are of peculiar significance, because made by the one who represented both contracting parties and who alone knew all about every transaction. When there is no sign of unfriendly feelings between the alleged debtor and creditor, and no reason to believe that the books were unfairly kept, the entries are entitled to great weight, for they are the contemporaneous record of deeds done, made by one who knew the facts and had no motive to set down or omit anything to injure the creditor. This was held, in substance, in the late case of Loos v. Wilkinson ( 110 N.Y. 195), where the facts in many respects so strongly resemble those now before us as to make the following extract from the opinion directly applicable to the case in hand: "It was a matter much litigated upon the trial whether the bond was ever a subsisting obligation, and if it was, whether there was anything due thereon at the date of the deed. Wilkinson Co. kept books of account, as bankers, in which their financial transactions were entered. Upon the trial the plaintiffs were permitted to show, against the objection of the defendants, that those books did not contain any entry of indebtedness from them * * * upon the bond mentioned. * * * It is undoubtedly true that if this were a controversy between John (the alleged creditor), and his brothers, the latter could not introduce their books for the purpose of showing that the bond was without consideration or that it had been paid. ( Carroll v. Deimel, 95 N.Y. 252.) But this is not a controversy between John and his brothers, and the latter are not seeking to maintain that their own books are evidence in their favor. The controversy is between the creditors and the three brothers, and the plaintiffs seek to establish fraud in the execution of the deed, mortgage and assignment against the three. There can be no suspicion that the books were manipulated for the purpose of cheating or taking any advantage of John. They were kept in the regular course of a large business, and the entries were made from day to day as transactions occurred. The defendants alleged that the consideration of the deed was an indebtedness from them to John, and it was competent for the plaintiffs to show, if they could, that no written obligation of any kind for the debt existed; and if John kept books of account, that there was no charge of the debt in his books; and if the debtors kept regular books in which were entered their debts and credits, that there was no entry of the debt upon their books. * * * What appeared and what did not appear upon the books were not in the nature of mere declarations of the grantors, but they were in the nature of acts and conduct pertinent to the inquiry." (P. 212.)
We think that the evidence in question was competent because it tended to show acts of the debtor, done in the ordinary course of his business, while he was still the owner of the property subsequently transferred in consideration of the alleged indebtedness. As we find no error in the record upon the appeal from the judgment, the latter should be affirmed, but the appeal from the order should be dismissed, because "the decisions of one court resting in discretion are not reviewable in another unless such review is especially authorized by law." ( Reilley v. President, etc., D. H.C. Co., 102 N.Y. 383, 386; Smith v. Platt, 96 N.Y. 635, 636; Dalrymple v. Hannum, 54 N.Y. 654; Baker v. Remington, 45 N.Y. 323.)
The judgment should be affirmed and the appeal from the order dismissed, with costs upon each appeal.