King v. Davis

By the Court, Sanderson, J.: The point made by the appellants, that the answer does not make an issue of fraud, cannot be considered by us further than to say that it comes too late. The answer contains a general allegation of fraud, and the appellants went to trial upon the issue thus joined, without taking any exception to the answer on the score of sufficiency. 3STor was any objection made by the appellants to the testimony introduced by the respondent in support of the issue of fraud; on the contrary, that issue was assumed to have been properly made, and was tried upon its merits. Under these circumstances an objection to the answer upon the ground that it does not contain a statement of the particular facts and circumstances constituting the alleged fraud, cannot be entertained by us. The defects in that respect, if any exist, must now be disregarded. (Crans v. Hunter, 28 N. Y. 395.) The case of Meeker v. Harris, 19 Cal. 278, cited by counsel for appellants, does not sustain the point that an objection of this character to an answer can be made after a trial upon the merits of the issue, for the first time in this Court. That action was to set aside certain judgments confessed by some of the defendants in favor of the others, upon the ground that they had been confessed with intent to hinder and delay creditors, and the objection was as to the sufficiency of the complaint in respect to the allegation- of fraud. The objection was considered by the Court, and it was held, in effect, that the complaint was defective in that respect; but when the objection was first taken—whether in [107]the Court below or in this—does not appear. Moreover, the case was decided finally upon different grounds, as appears from the opinion of the Court upon the petition for a rehearing. It may well be doubted whether, in actions of this character, it is necessary for the defendant to allege fraud at all, or do more than allege that the goods attached by him were the property of the defendant in the attachment, or that he had an attachable interest therein; but it is unnecessary that this question should be determined for the purposes of this case.

It follows that we cannot disregard the evidence in relation to the fraud. With that evidence in, we cannot say, with counsel, that the verdict is contrary to it. Upon the question of fraud there is an apparent and most material conflict.

The judgments in favor of A. Gold and of Terr in & Gold were properly admitted in evidence on behalf of the respondent. They were confessed upon the same day as that of the appellants’, and, as claimed by respondent, constituted a part of. the alleged fraudulent scheme between Gold and Bernstein and the appellants. It was, therefore, competent for the Court to admit them and allow the respondent to show, if he could, that they were confessed with a fraudulent intent, and, in short, constituted a part of the same transaction, of which the judgment in favor of the appellants was another part. Such was the respondent’s theory of the case, and he had an undoubted right to introduce any relevant testimony which tended in any degree to establish it. Whether the testimony, when in, was sufficient to establish it, was another question, which was, however, for the jury, and not for the Court. They were admissible at the time they were offered. If, thereafter, the respondent had wholly failed to connect them with the judgment of the appellants, as being part of the same transaction, it would have been the duty of the Court, upon appellant’s motion, to strike them out as evidence, or to instruct the jury to disregard them. But otherwise, if there was any evidence, how