(76 Hun, 540.)

#### DORR v. BECK, Sheriff, et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Fraudulent Conveyances—Rights oe Purchaser.

The title of a purchaser for value is not affected by the fact that in-making the sale the seller intended to defraud his creditors, unless the purchaser was aware of the fraudulent intent

2. Damages—Evidence.

In an action to recover goods seized under execution against a third person it is competent to ask plaintiff as a witness what was the fair market value of the goods at the time of the levy, as such question did not necessarily call for the retail value of the goods, which embraced uncertain or indefinite profits in the future.

Appeal from judgment on report of referee.

Action by S. Hobart Dorr against August Beck, as sheriff of Erie county, Frank S. Hubbard, and Charles Hubbard. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

F. M. Inglehart, for appellants.

William J. Cramer, for respondent.

BRADLEY, J.

The defendant Beck, as sheriff, by virtue of an execution issued upon a judgment in favor of the other defendants against one Charles Skinner, levied upon the goods in question, and afterwards sold them at the instance of the other defendants. The property consisted of a. stock of goods and fixtures in a drug store, at the time of the levy in the possession of the plaintiff, who was engaged in the business of selling the goods at retail. Skinner, having been the former owner, had carried on the business there until two days before the levy was made. He then sold out to the plaintiff. The defense is mainly founded on the charge that the sale to the plaintiff, and the purchase by him, were made with the intent to defraud the creditors of Skinner. The referee found otherwise, and his conclusion in that respect was supported by the evidence. The fact that the defendants Hubbard were proceeding to judgment against Skinner, and recovered it two days after he made the sale, is some evidence of intent on the part of the latter to hinder, delay, or defraud his creditors by his sale made of the property; and, *207if the question had rested wholly upon his purpose, the referee would1 have been fairly justified in finding the fact of such intent in support of the levy and sale. But, whatever may have been the design, of Skinner in disposing the property, good faith on the part of the plaintiff in making the purchase and paying the consideration would give protection to him and his title, as purchaser. The purchase price was $2,000. He at the time paid $500, and assumed an indebtedness of Skinner for the goods, amounting to $1,500, and substituted his own notes, with his mortgage to the creditor, in place of those before held against Skinner. There is no evidence tending to prove that the plaintiff had any knowledge of the indebtedness of Skinner to the defendants Hubbard, or of any action-pending to recover it, at the time of the purchase; but there was evidence which permitted the conclusion that he had no such knowledge or information, and that he neither knew nor believed that the sale was intended by Skinner to defraud his creditors. The price he paid, and undertook to pay, for the property, was equal in amount to its fair value. Upon the evidence, in view of the findings of the referee, it must be assumed that the plaintiff was a purchaser in good faith, for value; and therefore his title was effectual to support his action for relief against the defendants. -Jaeger v. Kelley, 52 N. Y. 274; Starin v. Kelly, 88 N. Y. 418; Stearns v. Gage, 79 N. Y. 102; Parker v. Conner, 93 N. Y. 118; Zoeller v. Riley Co., 100 N. Y. 102, 2 N. E. 388; Bush v. Roberts, 111 N. Y. 278,18 N. E. 732.

The facts, as found by the referee, were permitted by the evidence, and no consideration of any of the exceptions to them is required. It is, however, urged that he erred in some rulings admitting evidence on the trial.

When the plaintiff, as a witness, was asked to state what was the fair market value of the property at the time of the levy and sale by the sheriff, the objection was taken that it was not the proper measure of damages. The objection was overruled, and defendant excepted. If the evidence so offered was to prove the value, at retail prices, of the goods, as claimed by the defendants, its reception-was error. Wehle v. Haviland, 69 N. Y. 448. But such was not necessarily the import of the question which the witness was called upon to answer; and, if it had subsequently appeared that such was-the effect of the evidence given by him, a motion could properly have been made to strike it out. The measure of damages was the value of the property at the time referred to in the question, and it cannot be assumed that he could or did include in his answer anything beyond its then value. The retail prices would necessarily embrace uncertain or indefinite profits in the future, and involved the labor and expense attending the disposition in that manner of the stock. There was no apparent error in the ruling.

The plaintiff was permitted to introduce some evidence of the average daily sales, and expense of the business of selling goods from the stock at the store, a short time before the levy was made, and exception was taken. This evidence, abstractly considered, was immaterial, and its reception error, but it is not seen that it could have-prejudiced the defendant in any respect. It had no bearing upon *208the question of value of the property, and the amount of the recovery was based solely upon the value of it, as found by the referee. The evidence was evidently harmless.

And the examination of the other rulings upon the trial discloses no error to the prejudice of the defendants. There was some conflict in the evidence upon the question of value of the property, presenting quite a difference of opinion upon that subject. The referee adopted that midway between the two extremes, as its value, in this it cannot be said, in view of the entire evidence, that, in determining that question of fact, he did any injustice to the defendants, and his opinion indicates that me evidence was carefully considered by him. The judgment should be affirmed. All concur.