Benham v. Cary

11 N.Y. 83

• Court: New York Supreme Court
• Decided: October 15, 1833
• Status: Published

Opinion

By the Court,

Sutherland, J.

The only question in the case was, whether the wagon was really the property of Blakesley, or whether it belonged to the plaintiff, Cary. It seems to me a very clear case of a fraudulent attempt, on the part, of Cary and Blakesley, to cover up the property of the latter, and put it beyond the reach of his creditors. With a view to the question of fraud or conspiracy between Cary and Blakesley, the defendant offered to show other instances or transactions about the same time, in relation to other portions of Blakesley’s property, in which the title was nominally in Cary, but the sale actually made by Blakesley, and the consideration received by him. This evidence was objected to, and rejected by the court. With a view to the question of fraud, I think the evidence was competent; it was a transaction cotemporaneous with the one in question, and upon questions of this description, depending on various circumstances, a considerable latitude is indulged in the admission of evidence. The charge of the judge also was calculated to make an erroneous impression upon the jury, and to mislead them in the views of the ease.

Judgment reversed, and venire de novo,