| N.Y. Sup. Ct. | May 15, 1830
By the Court,
The defendant moves for a new trial on the ground of the mis-diraction of the judge. The only question in the cause was whether the bill of sale from Lester Smith to the plaintiff of all his household furniture, &c. was fraudulent and void against creditors.
It was satisfactorily shewn that Smith was indebted to Archer to about the amount of the property contained in the bill of sale ; that Archer was present in the house where the articles were when the bill of sale was executed, and took formal possession of a part in the name of the whole ; and that he on the same day executed a lease of the same property to Austin Smith, a brother of Lester, who resided in the house; and the balance of evidence, I am inclined to think, is, that the general impression in the neighborhood after the bill of sale and lease, was that Austin Smith conducted the business of the tavern, though Lester Smith and his family continued to reside in the house. The acts of Lester Smith in subsequently carrying away and attempting to secrete a portion of the property were without the knowledge, consent or approbation of the plaintiff.
If the lease to Austin Smith was colorable only, and he did not in fact take possession of the goods and control the establishment in which they were subsequent to the lease, then I do not perceive upon what principle the sale to the plaintiff can be sustained. There was no agreement whatever between the vendor and the vendee, that the former should retain the possession of the goods; and though the fact of such possession, without an agreement for the pur
The established doctrine of this court is, that a voluntary sale of chattels, with an agreement that the vendor may keep possession, is, except in special cases and for special reasons to be shewn to and approved of by the court, fraudulent and void as against creditors. (Sturtevant v. Ballard, 9 Johns. Rep. 337. Bissell v. Hopkins, 3 Cowen, 166. Jennings v. Carter, 2 Wend., 446" court="N.Y. Sup. Ct." date_filed="1829-05-15" href="https://app.midpage.ai/document/jennings-v-carter--wilcox-5513094?utm_source=webapp" opinion_id="5513094">2 Wendell, 446.) All the authorities will be found collected in those cases. (8 Johns. R. 451. 2 Cowen, 432.) No special reasons are shewn in this case, nor does it fall within any of the established exceptions to the general rule. If the possession is admitted to have remained in Lester Smith, (as it must be if the lease to Austin Smith was fictitious and colorable only,) then it is a bald case of a sale of chattels to a creditor for a valuable consideration, the vendor retaining possession without any special cause or reason whatever to account for it. Such a transaction never has been held valid since the statute of Elizabeth.
I think the judge should have charged the jury, that if they believed the lease to Austin Smith was real and bona fide intended to put him in the possession of the goods, &c. and that he actually took possession of the same and conducted the public house in which they were, then the sale to the plaintiff was valid, and he was entitled to recover; but that if they believed that such lease was colorable, and that it was intended by the parties that Lester Smith should continue in the possession and enjoyment of the property, then the whole transaction was void, and the defendant was entitled to a verdict.
New trial granted.