#### Theodore P. Rogers, Appellant, *v.*John E. W. Thompson, Respondent.

Appeal from a judgment, in favor of the defendant, rendered in the Municipal Court of the City of Mew York, borough of Manhattan, eighth district.

Howard E. White, for appellant.

-Edwin F. Stern, for respondent.

Leventritt, J.

The plaintiff sought recovery on a promissory note, dated the lYth day of August, 1895, in the sum of $400, payable twelve months thereafter, with interest. The defendant admitted that he gave the note in consideration of $400 loaned him by the plaintiff, but resisted liability on the plea that on the 18th day of Movember, 1895, he executed and delivered to the plaintiff, in satisfaction of the note, a bill of sale of the contents of a drug store owned by him.

After an exhaustive examination of the record we are unable to find anything which reaches the dignity of evidence to substantiate the defense. Vague and shadowy intimations leading to uncertain" inferences cannot be invoked to raise such a conflict of fact as would preclude a review on our part. Reference to the testimony will suffice to reveal the insufficiency .and shallowness of the defense..

The defendant introduced the bill of sale in evidence. This on its face contains nothing to support his plea. The consideration mentioned is *“*one dollar and other valuable considerations,” and while this is supplemented by the statement of the assumption *802of. payment' by the plaintiff of notes of the defendant, held, by third parties, there is a significant silence that the note in suit constituted part of the consideration, or that it was satisfied by the bill of sale. '

■ It is evident that the defendant cannot rest on that instrument to meet the plaintiff’s contention that the note- and bill of sale were entirely independent transactions. Therefore, in the absence -of other writings, if the defendant hoped to succeed, it. could only be by recourse to oral testimony. -We search the record in vain for evidence of the 'alleged original agreement to accept the bill ¡of sale in discharge of the note. No attempt was made to prove .at, and. the defendant contented himself with presenting certain testimony of subsequent demands for, and unfulfilled promises to return, the note. But "these demands are not founded on any proven right or .established agreement. Moreover, the very witnesses from whom the defendant sought to elicit proof thereof,-, gave testimony entirely inconsistent with the theory of the .defense, in that they stated that the demand for the return of the note was coupled with a- demand for the return of the bill of sale.Obviously, the plaintiff would have been entitled to the .retention -of the bill of sale if it had been given for, and in extinguishment ■<of„ the note.

To uphold the judgment we shoiild have to conclude that what • -can scarcely be termed a scintilla of evidence establishes the plea . of payment. Furthermore, the plaintiff met this plea not only by emphatic.denial but by conclusive proof that the bill of sale was ¡a mere nominal transfer and had no relation whatsoever to the note. It is uncontradicted that after the execution of the bill of ¡sale the defendant continued in occupancy and control of the ..store; paid the rent; paid for new . stock which he personally .¡ordered; .kept the bill of sale in his safe; in .the absence of the plaintiff personally conducted .negotiations x and concluded, in . March, 1897, in his own name, a sale of the identical property; received the money therefor and immediately paid therewith a ¡debt which, had the bill of sale been valid, -the plaintiff would have ■been obligated to pay; turned over to the purchaser the keys and the possession; and'performed other acts which can be reconciled only with ownership on his part. The record also contains uncontradicted admissions made to disinterested witnesses to the effect that he was the real owner, that .the transfer was fictitious and made to serve his own ulterior purposes. Thus he admitted to an employee of one of his creditors that the bill of sale had been .given “ to prevent some people from calling and claiming against *803him ”, while to the attorney for the same creditor he declared on. various occasions that he “ was the real owner of the store ” although he had givén a bill of sale to the plaintiff. ■

Even if all this convincing testimony should be ignored, the defendant should not have prevailed. There was a complete failure of proof on his part, and we have, therefore, not been called upon to depart from our rule not to weigh testimony in arriving at the conclusion that the judgment must be reversed.

Ereedmak, P. J., concurs; MaoLeae, J., concurs in result.

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