#### The Mosler Safe Co., Respondent, *v.*Albert Hartog and Ferdinand Hartog, Copartners under the Firm Name of Hartog Bros., Appellants.

(Supreme Court, Appellate Term,

January, 1899.)

Sale — Insufficient proof of fraud.

Where at the time of a purchase, which a firm was specially solicited to make, the members made no representations as to their solvency, fraud in the sale is not sufficiently shown by proof that six weeks later the firm gave a chattel mortgage to the wife of one member and that, upon a demand made for the return of the thing sold, one of the firm said “ that he had a big law library and knew all the law and knew how to get around it ”,

Appeal by defendants from a judgment of the Municipal Court, borough of Manhattan, first district, rendered in favor of the plaintiff upon a trial had before the court, without a jury. The nature of the action and material facts are stated in the opinion.

Weekes Brothers, for appellants.

Page & Eckley, for respondent.

Giegerich, J.

This action was brought to recover damages for fraud in obtaining a safe under a promise to pay the purchase price in cash upon delivery of the same. The answer was substantially a general denial. The safe was sold on September 9, 1897, for $187.50 and was to have been delivered on ¡November 1, 1897. *15It seems, however, according to the testimony of the defendant Albert Hartog (who is not contradicted in this respect), that the safe was received by the defendants on or about October 1, 1897, *“*as a personal favor to the plaintiff.” There was no demand made at the time of the delivery for the purchase price, and the first request for payment which the record discloses seems to have been made some time during the month of November in the same year.

Support for the allegation of fraud is sought to be derived from the fact that on the 15th day of November, 1897, the defendants gave a chattel mortgage to the wife of one of the members of their firm to secure the payment of $2,850; and, further, from the alleged statement of one of the defendants, made, as claimed, when a return of the safe was demanded, *“*that he had a big law library and knew all the law and knew how to get around it.” It is undisputed that at the time the order for the safe was given, neither of the defendants made any representations as to their pecuniary responsibility.

The plaintiff offered no proof whatever with respect to the financial condition of the defendants’ firm during any part of the period above mentioned, except such as may be inferred from the making of the chattel mortgage, and for all that appears to the contrary the firm may have been solvent when that mortgage was given. The mortgage, as above shown, was executed more than a month and a half after the safe was received by the defendants, and there is no satisfactory proof from which it might reasonably be inferred that they had secured possession of the same with the preconceived idea of not paying for it, while the only direct evidence is to the effect that the defendants reluctantly received the safe and did so solely at the plaintiff’s solicitation.

Under these circumstances, the judgment for the plaintiff is not supported by the weight of the evidence and it must, therefore, be reversed and a new trial ordered, with costs to appellants to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.