Action by Peter H. Daly against the Central Railroad Company of New Jersey. From a judgment entered on a verdict directed for defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ.

Gilbert D. Lamb, for appellant.

Robert Thorne, for respondent.

BARRETT, J. Upon a previous trial of this case the plaintiff was nonsuited. He appealed, and upon that appeal we held that the nonsuit was erroneous, and that his testimony, standing alone, was sufficient to carry the case to the jury. 26 App. Div. 200, 49 N. Y. Supp. 901. Upon the second trial, now under review, the plaintiff gave substantially the same testimony as upon the first trial. We need not repeat that testimony. Its substance will be found in the report of the previous appeal. Upon the present trial the learned trial judge, following our decision, denied the motion for a nonsuit made at the close of the plaintiff's case. The defendant then put in its evidence, which conclusively established the fact that the plaintiff was picked up at a point nearly half a mile distant from the station terminus. This point could only have been reached in the manner testified to by the defendant's witnesses. The train was backed out by its engine, and was subsequently picked up by a drill engine. It was thus pulled back more than half a mile from the station, then around a switch, and back again a considerable distance. It finally reached the point where, according to the uncontradicted testimony of six witnesses, the plaintiff was found. The plaintiff was called in rebuttal, but gave no testimony on this point. In his original testimony he stated that he was dragged out "on the yard" some distance; that he believed he was dragged about two or three hundred feet; and that then his clothing, which had been caught on the step of the car, gave way, and the wheels went over his foot. Upon this latter testimony the case for the plaintiff was certainly slight and doubtful. He was entirely unsupported by any other witness. Upon the other hand, two of the defendant's witnesses testify that he was not dragged at all from the station terminus, but was on the steps while the car was being backed. This is strongly supported by the uncontradicted testimony of four other of the defendant's witnesses, who agree as to the precise point where he was found. The plaintiff, with all this testimony before him, entirely failed to deny that he was picked up at the point in question. Thus, what must be deemed the uncontradicted evidence of the latter fact conclusively negatives the plaintiff's story as to how the accident occurred. If he attempted to alight at the station terminus, and there fell, how could he possibly have been dragged backwards and forwards to the point half a mile distant? His own story, that he was dragged some two or three hundred feet, was sufficiently improbable, though not so impossible as, standing alone, to warrant the withdrawal of its consideration from the jury. When we find, however, that he was picked up at a point half a mile distant,—a point

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so situated that the car could not have been pulled back to it in a direct line, the conclusion seems inevitable that he minimized the extent of the dragging because an admission that he had been dragged to the point where he was actually picked up would have been fatal. At the close of the case the learned trial judge directed a verdict for the defendant,—we think, correctly. A verdict for the plaintiff could not, upon such testimony, have been sustained; and, if rendered, it would have been the duty of the trial judge to set it aside. The rule is well settled that, where the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would necessarily be set aside, the trial court may properly direct a verdict. Dwight v. Insurance Co., 103 N. Y. 341, S N. E. 654; Linkauf v. Lombard, 137 N. Y. 426, 33 N. E. 472. The case of Williams v. Railroad Co., 155 N. Y. 158, 49 N. E. 672, does not conflict with or modify this rule. In that case the plaintiff was nonsuited because the trial court did not, for somewhat obvious reasons, credit the plaintiff's testimony. The court of appeals reversed the nonsuit upon the ground that it was the province of the jury, not of the court, to say whether the plaintiff's testimony was entitled to belief. This was all that the court there held. It was not a question, therefore, of the weight of evidence or of the preponderance of testimony. The rule on the latter head was not the subject of consideration, nor was there the slightest intimation that that rule was in conflict with the general rule as to the province of a jury upon a question of credibility. In the case at bar the preponderance of testimony adverse to the plaintiff's weak and improbable story was so overwhelming that it was the plain duty of the trial judge to direct, as he did, a verdict for the defendant.

The judgment and order appealed from should therefore be af firmed, with costs. All concur.

(38 App. Div. 311.)

ABE STEIN CO. v. ROBERTSON.

(Supreme Court, Appellate Division, First Department. March 24, 1899.) SALE-CONTRACT-CONDITIONS.

Under a contract of sale of skins expected to arrive from a foreign country, to be shipped immediately; skins to be of the usual good quality; any question of quality to be decided by the broker, and his decision to be final; with the condition, "no arrival, no sale," the goods arriving, but being decided not to be of the quality described, the buyer may recover damages; the contract not being conditional, except as to the question of arrival.

Appeal from trial term, New York county.

Action by the Abe Stein Company against Julius Robertson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ.

Charles E. Rushmore, for appellant.

S. Livingston Samuels, for respondent.

RUMSEY, J. On the 24th of May, 1895, the defendant entered into a contract with the plaintiff, of which the following is a copy:

"New York, May 24th, 1895. "Sold, for account of Messrs. L. F. Robertson & Son, to the Abe Stein Company, about $5,000 Tientsin goatskins, firsts, 1% to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by steamer or steamers to New York. About 2% of lot to be medium black haired skins, and the remainder white or gray haired skins, of which 40 per cent. medium hair, sixty per cent. medium to long hair. Skins to be of the usual good quality of this province. Any question of quality to be decided by selling brokers, and their decision to be final and binding on both parties. Terms net cash, and to be taken from the wharf.

"John Andresen & Son, Brokers."

Two days afterwards it was arranged between the parties "that the usual condition of 'no arrival, no sale' holds true, and that the sellers are to notify the buyers upon what vessel or vessels the goods were shipped." Subsequently the sellers notified the broker of the arrival of a portion of the goods, which were inspected by him, but he determined that they were not of the quality prescribed in the contract. As subsequent shipments were received, they also were examined by the broker, and he reached the same conclusion with regard to them. The plaintiff therefore refused to receive them, and brought this action for the damages which it had sustained by the failure to deliver the goods contracted for. Upon the trial there was no serious question of the amount of damages, and a verdict was ordered for the plaintiff for the amount proved, and upon which a judgment was entered. A motion was made for a new trial, which was denied, and from the order and judgment the defendant takes this appeal.

It is urged by the defendant that the contract was conditional, not only as to its performance, but as to its existence, and that because it contained the condition that, if there was no arrival of the goods, there was no sale, if the goods specified in the contract, of the quality therein prescribed, did not in fact arrive, therefore the contract was at an end; and he based his argument for a reversal of this judgment upon that proposition, and enlarged upon it in his supplemental brief, which we have considered. It is quite true that in the case of the sale of goods already in transit, where there is no warranty that the shipment has been made, and where the fact of shipment may be uncertain, the existence of the contract itself is conditional upon the arrival of the goods of the quality which is specified in it. Shields v. Pettie, 4 N. Y. 123. In such contracts, if the goods contracted for do not arrive, either because the vessel is lost, or for any other reason, without fault or fraud of the seller, the contract is at an end. Renj. Sales, § 578 et seq.; Neldon v. Smith, 36 N. J. Law, 148, 154. But such a condition as to the existence of the contract has never been held to arise where the contract either contains a warranty that the shipment had been made (Benj. Sales, § 580 et seq.), or an express agreement on the part of the seller to make the shipment within a specified time (Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12; Bowes v. Shand, 2 App. Cas. 455). In such a case the contract becomes at once an existing contract, and the agreement as to the quality

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of the goods is a condition precedent to their receipt by the buyer, which must be performed by the seller; and, unless he ships goods of the quality required by the contract, he fails to perform it, and the buyer is entitled to damages for such failure (Clark v. Fey, 121 N. Y. 470, 24 N. E. 703; Eppens, Smith & Wiemann Co. v. Littlejohn, 27 App. Div. 22, 50 N. Y. Supp. 251), because, as the seller has expressly agreed to ship the goods, a failure to arrive, resulting only from his failure to ship, is caused by the default of the seller, and does not operate to relieve him from his contracts. In this case, the contract containing the provision that the goods were to be shipped immediately by steamer or steamers to New York, the defendant was bound to ship goods of the quality required; and, if he failed to do it, he was liable for a breach of the contract. By the contract, the question of quality was to be decided by the selling brokers, and their decision was to be final and binding on both parties. It is not disputed that the selling brokers decided that the goods were not skins of the usual quality of the province of Tientsin, which, by this contract, they were to be. It is not claimed that there was any fraud or mistake or collusion on their part, and therefore their decision upon that point was final. Commissioners v. Sullivan, 11 App. Div. 472, 42 N. Y. Supp. 358; Wahl v. Barnum, 116 N. Y. 91, 22 N. E. 280. For these reasons the judgment and order appealed from was correct, and must be affirmed, with costs to the respondent. All concur.

(38 App. Div. 266.)

WEISER v. KLING et al.

(Supreme Court, Appellate Division, First Department. March 24, 1899.) 1. RES JUDICATA.

A judgment holding a conveyance to be in fraud of creditors, in which fraud the grantee participated, is conclusive against his right against the property for the consideration which he paid the grantor, and the amount which he, while in possession, paid to satisfy a mortgage thereon; and these questions might have been decided in the suit to set aside the conveyance as fraudulent, and it was his duty to ask for such an adjudication.

2. FRAUDULENT CONVEYANCES-RIGHTS OF GRANTEE.

Where a conveyance is set aside as in fraud of creditors, the grantee. who participated in the fraud, has no right against the property, by subrogation or otherwise, for the consideration for the conveyance,-money which he had advanced to the grantor to reduce a mortgage on the property, and which had been so used before the conveyance,-or for money with which he, while in possession of the property, had a mortgage thereon satisfied.

Appeal from special term, New York county.

Action by Joseph Weiser against Philip Kling and another. From a judgment for defendant Kling (53 N. Y. Supp. 578), plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ.

Sol M. Stroock, for appellant.
Abram Kling, for respondent.

RUMSEY, J. The facts appearing in this case are somewhat complicated, and, for a correct understanding of the case, it is necessary that they should be carefully recited: On the 5th of April, 1892, one Rebecca Weisel, with others, delivered to one Friend a bond and mortgage to secure the payment of $5,500, of which $1,000 was to have been paid on the 1st day of December, 1892, and a like sum on the same day in each year up to and including 1895, and the remaining $1,500 on the 1st of December, 1896, with interest annually. On the 5th of October, 1895, Mrs. Weisel conveyed the mortgaged premises to the plaintiff in this action. By the deed it was stated that the premises were subject to two mortgages, one of $18,000, and one of $2,500, to which latter amount the Friend mortgage had been then reduced. At the time of this conveyance, Mrs. Weisel was indebted to the defendant Wright in a considerable amount of money, for which he recovered against her a judgment on the 12th of March, 1896. This judgment was duly docketed in New York county, and execution was issued upon it, which was returned unsatisfied; and Wright began a judgment creditor's action against Weiser (this plaintiff) and Mrs. Weisel, in which he recovered a judgment that the conveyance from her to Weiser was made by the said defendants, and each of them, with intent to hinder, delay, and defraud the creditors of Mrs. Weisel. The judgment directed that the premises should be conveyed to a receiver by the defendants in that action, and should be disposed of by him, and the proceeds applied as more particularly stated in the judgment. Whether this direction of the judgment was fully carried out or not does not appear. It does ap pear, however, that the receiver sold the premises at auction, and conveyed them to the defendant Kling. When sold, they were subject to a mortgage of $18,000. Weiser was in possession of the premises from the date of his deed, in October, 1885, until they were sold by the receiver. While he was in possession, he paid, as he says, to Friend, what was due upon his mortgage, and procured a satisfaction piece thereof, which was executed on the 1st of December, 1896; the last of the payments having been made upon it on that day. After he had been dispossessed from the premises in pursuance of the receiver's deed he brought an action against Friend; alleging that, for certain reasons stated in his complaint, he was entitled to be subrogated in Friend's place as to all the payments made on the $5,500 mortgage, and asking that the satisfaction piece of that mortgage be vacated, and that he be declared to be the assignee of the mortgage. No other person than Friend was made defendant in that action. Friend, having no interest in the matter, made no substantial defense, and Weiser procured the judgment which he asked for. Of that judgment it may be said that, as neither Wright nor Kling were parties to it, it is evidence in this action. of nothing but its own rendition; and it is only material as tending to show that by some means Weiser has the title to the mortgage, and that it is not satisfied. It neither establishes, as against the de fendants in this action, that Weiser paid any money upon that mortgage, nor that he paid the money in good faith, nor that the mortgage was not properly reduced to $2,500 when Weiser took his con57 N.Y.S.-4