Collins v. Brush

9 Wend. 198

• Court: New York Supreme Court
• Decided: May 15, 1832
• Status: Published

Opinion

By the Court,

Sutherland, J.

The judge fell into an

error in his charge to the jury. The property not having been taken possession of by the vendee, but having been left in the possession of Ayres the vendor, from November, 1829, to March or April, 1830, the sale was prima facie fraudulent, as against the creditors of Ayres; and it was incumbent upon the plaintiff Collins to repel that presumption, by showing some satisfactory reason for his omission to take it into his possession. It is not sufficient to show that the sale was upon a valuable consideration; some reason must be shown which the court can approve for leaving the goods in the possession of the vendor; none was shown by the plaintiff. Indeed the judge ruled that it was for the defendants to prove the fraud. In this he erred ; they proved all that was necessary for their case in the first instance, when they showed that the possession of the goods was not changed. It was for the plaintiff to show an excuse for it. This he did not do. This doctrine is perfectly established in the cases of Sturtevant v. Ballard, 9 Johns. R. 337; Bissell v. Hopkins, 3 Cow. 166; Jennings v. Carter, 2 Wendell, 446; and Archer v. Hubbell, 4 id, 517. A new trial must therefore be granted.