FOURTH DEPARTMENT, MAY TERM, 1898. [Vol. 29. I closed up when it came time and went home, and took the key of the store with me. Sometime on Monday morning I went * * * to the store. That was the morning of the 15th. that Saturday I did see some of that stock of goods at my house. That was on Wednesday evening, the 17th. There were some goods wheeled from the store in a cart. It was on Wednesday evening or Thursday. We borrowed a cart from Mr. Selmser and wheeled them to the house. That was half-past nine or ten o'clock. Not a very dark night. * On Saturday was the only time after the bill of sale that my store was open for business. I made the big poster on Monday. I made more than one poster." * * At the time the bill of sale was executed by Bancroft he was indebted to several other parties. His rent was some four months overdue, and he was indebted for coal which he had had for his house and store. Opdyke testified that he drew the bill of sale, and that, "After the delivery of the bill of sale, the store was locked up by Mr. Bancroft, and the keys handed over to Mrs. Brown at the store, in the evening of March 12th." Plaintiff was sworn as a witness, and testified that she lived in the family of Mr. Bancroft, and that she was at the store on Friday evening when the bill of sale was delivered to her. "After that Mr. Bancroft locked the store and gave me the keys, and we went home. I retained the keys until the next morning and then I gave them to him, and directed him to go to the store as usual." She testified: "I took the bill of sale to pay me in part for the money I had advanced to him." She does not testify, nor is there any proof, that any receipt was given or that any indorsement was made upon any notes of the amount mentioned in the bill of sale, nor were any notes or evidences of indebtedness against Bancroft produced in behalf of plaintiff upon the trial. The defendant as a witness testified that he went to the store on Monday, and that he found Mr. Bancroft and Denny in the store packing up goods; that he rapped at the window and asked them to let him in, and that they put up a paper so he could not look in. The defendant was a constable, and received attachments and executions against Bancroft, and, in virtue thereof, made a levy upon a portion of the goods found in the store, and for such levy and seizure App. Div.] FOURTH DEPARTMENT, MAY TERM, 1898. by the defendant this action is brought, the defendant alleging in his answer that the goods taken by him were the property of the said William G. Bancroft, and this defendant attached, levied upon and sold a part of said goods by virtue of said attachments and executions against the said William G. Bancroft, and that his said acts under said attachments and executions constitute the same transactions alleged in the complaint herein." In the answer it is further alleged that the bill of sale to the plaintiff "was wholly fraudulent and void as against the creditors of said Bancroft, and especially as against said George W. Phelps and against this defendant, and that said goods at the time of said attachment were the property of the said William G. Bancroft." At the close of the evidence the plaintiff asked the court to hold that there was no question for the jury, except as to the value of the property. "Defendant asked leave to go to the jury upon the question as to whether there was an immediate delivery and an actual and continued change of possession." The request was denied and the defendant took an exception. In the course of the charge delivered by the court to the jury, he observed: "The only question for you is the value of this property. For the amount you find the value to be, you will render a verdict for the plaintiff, with interest from the 17th of March, 1897." Thereupon the defendant "asked the court to charge that as to whether there was an immediate and an actual and continued change of possession was a question which the jury must decide upon the evidence." The request was denied and the defendant took an exception. The defendant also excepted to the charge "that by the delivery of the key there was an immediate delivery of the goods as plain and notorious as there could be." He also excepted "to the charge that all the evidence showed that she took immediate delivery of this property, and that there was an actual and continued change of possession." In Tilson v. Terwilliger (56 N. Y. 273) it was said that a sale of chattels must be accompanied by a continued change of possession to avoid the presumption of fraud. In that case it was held that, "although the sale be accompanied by immediate delivery and followed by an actual change of possession, yet if thereafter, however long may be the interval, it come again into the possession of the vendor by the act, or with the knowledge and assent of the vendee, FOURTH DEPARTMENT, MAY TERM, 1898. [Vol. 29. with no intermediate change of title, the presumption of fraud arises, and it devolves upon the vendee to show that the transaction was in good faith and without intent to defraud. The length of time between the sale and the coming again of the property into the possession of the vendor is immaterial, save as a circumstance to be considered by the jury on the issue of good faith and absence of intent to defraud. Where, in an action between the vendee and a creditor of the vendor to determine the title of the former to the property purchased, upon the one side is this statutory presumption of fraud, and on the other the testimony of the vendee tending to repel such presumption, the question is one of fact for the jury, and should not be taken from them and passed upon by the court as a question of law." In Bagley v. Bowe (105 N. Y. 179) ANDREWS, J., said: "The question whether the judge was authorized to take from the jury the question of fraudulent intent arising upon the extrinsic facts is to be determined in view of the settled rule that to justify the court in directing a verdict in any case upon the facts, the evidence must be undisputed, or so certain and convincing that no reasonable mind could come to but one conclusion. If there is ground for opposite inferences, and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy." That same learned judge added: "In a case which of right is triable by jury, the court cannot take from that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted or the contradiction is illusory, or where, to use a current word, the answering evidence is a 'scintilla' merely." The doctrine laid down in Tilson v. Terwilliger (supra) was quoted and followed in Wallace v. Nodine (10 N. Y. Supp. 919), and in Woodworth v. Hodgson (9 id. 751). In the latter case the learned judge delivering the opinion, said: "The testimony of these two witnesses, father and son, even if they had not been interested in the event of the action, was of such a character, in the most favorable construction of it, as to require the same to be submitted to the jury, and for them to determine whether or not there was an actual change of possession." App. Div.] FOURTH DEPARTMENT, MAY TERM, 1898. In the case in hand, the testimony as to whether there was an immediate change of possession came from the witness Bancroft and the plaintiff under such circumstances as to warrant the trial judge in submitting to the jury the question of the credibility of such witnesses. We think the learned trial judge fell into an error in refusing to submit the questions of fact arising upon the evidence to the jury. The defendant's exceptions should be sustained and the verdict set aside and defendant's motion for a new trial granted, with costs to the defendant to abide the event. All concurred. Defendant's exceptions sustained, verdict set aside and defendant's motion for a new trial granted, with costs to the defendant to abide the event. RACHEL A. JONES and SIDNEY S. SPRING, as Administrators, etc., of SAMUEL JONES, Deceased, Appellants, v. WILLIAM P. PERKINS and CHRISTINA PERKINS, Respondents. Personal transaction with a decedent · what testimony of an administratrix as to a transaction with her intestate does not justify a claimant against his estate in proving an independent transaction— a gift inter vivos must be clearly established by the donee. In an action brought by the administrators of one Samuel Jones to recover money loaned under an alleged agreement on the part of the defendants that they would execute and deliver to the said Samuel Jones a mortgage upon certain lands in the sum of $650, for the purpose of securing the payment of the loan made by the said Samuel Jones, a defense was interposed that the said $650, "given to the defendant Christian Perkins by the said plaintiffs' intestate, was an absolute gift to her." Upon the trial of the action the widow and administratrix of Jones testified, in behalf of the estate, to a transaction between her intestate and the defendants, one of whom was his daughter, at which, as she alleged, the loan was made, and she also testified as to its terms. Thereafter, both the defendants were permitted to testify to an independent transaction had between themselves and the intestate, at which the administratrix was not present, the effect of which was to establish a gift by the intestate to his daughter of the money in question. Held, that, although the administratrix had given her version of the matter, section 829 of the Code of Civil Procedure did not permit the defendants to 29 37 37 291 FOURTH DEPARTMENT, MAY TERM, 1898. [Vol. 29. testify to an independent transaction of theirs with the intestate which tended to confute the version of the administratrix; That as the defendants had attempted to establish a gift inter vivos, they were bound to prove it by clear and satisfactory evidence. APPEAL by the plaintiffs, Rachel A. Jones and another, as administrators, etc., of Samuel Jones, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 29th day of September, 1897, as amended by an order entered in said clerk's office on the 28th day of October, 1897, upon the report of a referee, dismissing the complaint upon the merits. Plaintiff's complaint alleges that on the 20th day of June, 1892, and for a number of years prior thereto, the defendant William R. Perkins was the owner in fee of, and the defendant Christina Perkins had an inchoate right of dower in, certain lands particularly described in the complaint as seventeen acres, situated in the town of Middlebury, and that Samuel Jones, in his lifetime, about that date, loaned and advanced to the defendants the sum of $650 with which to pay a certain mortgage executed by the defendants to Theron Bullock upon the lands so described. The complaint alleges that the defendants agreed that they would "execute and deliver to the said Samuel Jones a mortgage upon the lands and premises above described in the said sum of six hundred and fifty dollars, for the purpose of securing the payment of the said loan so made by the said Samuel Jones to these defendants; said mortgage, by the terms of said agreement, to be due and payable five years from the date thereof, to wit, on the 20th day of June, 1897, with annual interest thereon.” It is alleged in the complaint that on the 21st of June, 1892, the defendants paid to Bullock the sum of $650, so received from said Jones, in discharge of the Bullock mortgage, and that that discharge was executed by him and recorded in the clerk's office of Wyoming county. It is further alleged that on the twenty-third of July the defendant William R. Perkins conveyed the said premises to the defendant Christina Perkins, who is now the owner of the premises. It is alleged that the defendants have refused and neglected to execute a mortgage upon the premises, and have not paid the sum of $650, or the interest thereon, or any |