Jansen v. Acker & Rich

23 Wend. 480

• Court: New York Supreme Court
• Decided: May 15, 1840
• Status: Published

Opinion

Bronson, J.

By the Court, However fraudulent the sale from Anderson to the plaintiff may have been as against the creditors of the former, it was nevertheless valid as between the parties to the transaction; and the defence was not complete without showing a judgment, as well as execution against Anderson.

It was said on the argument that the plaintiff did not suggest this objection on the trial. That is more than we can see, or are authorized to infer from the bill of exceptions. The plaintiff resisted the motion for a nonsuit, and although it appears that the question was argued on both sides, it does not appear what reasons were assigned either for or against the motion. Under such circumstances we can make no presumption against either party —certainly not in favor of one and against the other. The exception is mainly directed against the power of the judge to nonsuit the plaintiff after evidence had been given upon both sides, a position which cannot be maintained, But I am inclined to think that the exception was not only designed to raise that question, but also the question whether the nonsuit was proper on the whole case as it appeared. The judgment must, therefore, be reversed and a new trial ordered in the C. P., when the defendants will have the opportunity of producing the judgment as well as the execution against Anderson.

Judgment reversed.