Lemuel Coffin et al., Appellants, v. William H. Hollister, Jr., as Assignee, etc., Respondent

Lemuel Coffin et al., Appellants, v. William H. Hollister, Jr., as Assignee, etc., Respondent. In an action to recover possession of goods sold and delivered to defendants on the ground that the sale was induced by false and fraudulent representations made by them, the burden is upon the plaintiff to ■ establish that such representations were made with intent to deceive and defraud. (Argued February 3, 1891; decided February 24, 1891.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 11, 1889, which affirmed a judgment in favor of defendant entered upon the report of a referee. This was an action of replevin to recover the possession of fifteen cases of muslins that had been sold by the plaintiffs to the firm of Toles & Pettit, manufacturers of shirts in the city of Troy. The following is the mem. of opinion: “ On the 31st of October, 1881, the plaintiffs sold the goods in question to the assignors of the defendant upon a credit of sixty days from December 1, 1881, and on the 17th of January, 1882, they commenced this action to replevy the same upon the ground .that they had been induced to sell and deliver their property by reason of certain false and fraudulent representations made by the purchasers. The burden of proof was upon the plaintiffs to establish that the alleged false representations were made by the vendees with intent to deceive and defraud. (Nichols v. Pinner, 18 N. Y. 295, 299; Arthur v. Griswold, 55 id. 400, 410; Morris v. Talcott, 96 id. 100; Macullar v. McKinley, 99 id. 353, 358; Brackett v. Griswold, 112 id. 454, 467.) “ The learned referee before whom the action was tried, found that certain material representations were made, but he did not find that they were made with intent to defraud and he refused to find that they were false. On the other hand, he found that the defendant, as assignee, was the actual owner of the goods when this action was commenced, and that no facts ever existed that authorized the plaintiffs to rescind the sale or to have the same declared fraudulent and void. These findings have been expressly approved by the General Term, which states in its opinion that the referee’s report is justified by the evidence. The only ground upon which we are asked to reverse the judgment appealed from is that the referee erred in passing upon the facts. We are unable, however, to review Ms conclusions in this regard, because the questions of fact rest upon a conflict of evidence and are thus protected from interference by us, even if we were of the opimon that they should have been otherwise determined. (Healy v. Clark, 120 N. Y. 642; Code Civ. Pro. §§ 992, 993, 1337.) When the result depends, as it did in this case, upon the credibility of witnesses, the facts found by the trial court and approved by the General Term are final and unchangeable for the purpose of an appeal to this court. This is often said, but oftener disregarded, and the result is many fruitless appeals. “ The judgment should be affirmed, with costs.” N. A. Parmenter for appellants. Nelson Davenport for respondent. [MAJORITY — Vann, J.,] Vann, J., reads for affirmance. All concur. Judgment affirmed.