115 N.Y.S. 533 | N.Y. App. Div. | 1909
■ This is an appeal from a judgment adjudging that the- assignment of a bond and mortgage by Newman Sofranski, the bankrupt, to Eva Sofranski, his wife, and an assignment by Eva Sofranski to the defendant Solomon are void and fraudulent as against the bankrupt’s creditors. The court found that in August, 1905, Newman Sofrauski owned certain real property in the city of New York described in the complaint; that lie sold this property, and on the 15th day of August, 1905, he received from the purchaser $20,000 in cash and a bond and mortgage for $26,500, payable to the bankrupt and which mortgage was duly recorded; that the defendant Eva Sofranski was entitled to an inchoate right of dower in the premises and joined with her husband in the deed conveying the property; and subsequently, on the 22d day of January, 1906, the bankrupt assigned the bond and mortgage to his wife, Eva Sofranski, without any or adequate consideration, which assignment was recorded in the office of the register of the city and county of New York; that thousands of dollars were owing to certain creditors of Newman Sofranski on the 22d day of January, 1906, of which the defendant Eva Sofranski had knowledge, and that the assignment of the mortgage left Newman Sofranski insolvent; that there was no agreement in writing or otherwise between the said Newman Sofranski and Eva Sofranski entered into at or prior to the sale of the property whereby Newman Sofranski agreed to give Eva Sofranski the said bond and mortgage in consideration of her executing the deed conveying the said premises, and the said Eva Sofranski executed the deed of her own free will, without any promise of any consideration whatsoever, and that a certain letter purporting to have been dated the eleventh day of August, introduced in evidence by the defendants on the trial of the action, was and is an afterthought and a fabrication; .that on thé 16th day of February, 1907, the said Eva Sofranski attempted to assign the said mortgage to the defendant Solomon-for the purpose of hindering, delaying and defrauding the creditors of the said Newman Sofranski, and the said defendant Solomon took such assignment .with knowledge of the fraud and with
To prove the allegations of the complaint upon which the action was based the plaintiff called as witnesses the parties to this transaction. Newman Sofranski, the bankrupt, testified on his direct examination that on the 22d day of January, 1906, lie was entirely solvent; that there was $11,700 due him from his brother as money loaned and $6,000 in an unliquidated claim against Steinthal & Co.; that he became embarrassed on March 3, 1906, when a petition in bankruptcy was filed against his brother; that he spoke to his brother, who said that he could still go on and continue and could pay the witness back some of the money that he owed; that subsequently, when his brother was adjudicated a bankrupt and there was no chance of getting any of the money that liis- brother owed him, he found that he could not continue his business. He further testified that in August, 1905, he owned this property in question subject to a mortgage of $82,000; that he sold the property for $122,500 and received $20,000 cash and a mortgage for $26,500, paying off a lien of $3,250 out o'f the money that he received; that the mortgage of $26,500 was given to' the defendant in August; that when he received this offer of $122,500 for the property his wife strongly objected to selling it, saying that before she would consent to a sale of the property, or to sign her name, she wanted to be protected in some way, to which the witness said, “ The only protection I can give yon is that I get $20,000 in cash and I will pay you back the second mortgage which I take back,” and with that she said she was satisfied; that this was the first transaction that the witness had ever had in real estate and did not know that he had to have an assignment to transfer the mortgage, but at the same time he gave her a paper which entitled her to the mortgage and which was subsequently introduced in evidence ; that the defendant said she would not sign the deed unless the witness gave her the mortgage. He testified on cross-examination that on the 11th day of August, 1905, he had no indebtedness of any kind whatever,, and that on the 22d of January, 1906, the only indebtedness he had that had- not been paid was the indebtedness that was on his schedules in bankruptcy. On re-direct examination by the plaintiff,
“ New York, Aug. 11th, 1905.
“I, Newman Sofranski, agree with my wife Eva Sofranski that if she signs the deed on property 64 & 66 Rutger St., N. Y., I will give her the 2nd Mtg. of $26,500 which I take back.
“(Signed) Newman Safrinski.”
That the defendant took this paper at the time and retained it. The plaintiff then called the .defendant Eva Sofranski, who testified on her direct examination that her husband had been receiving offers for the purchase of this property for some time before it was sold ; .that she was not anxious to sell the property ; that in May, 1905, when an offer for the property was made, she stated that she was not going to consent to the sale of the house; then when the final offer that was accepted was made, .her husband said that was the best offer he could ever get for the property; that she went to the country early in July and her husband came there and talked over the selling of the property ; that he then said that he was to get $20,000 in cash and was to have a mortgage- for $26,500 ; that finally she made a proposition to her husband that she would sign it if he would give her the $26,500 mortgage, and to that her husband agreed; that before she signed this deed her husband gave her the paper dated August 11, 1905; that she had no recollection of giving it back to him and his taking it back to Rew York; that she had the paper at that time in her possession ; that she signed the deed in the country and-that she always thought that this mortgage was her property; that in January, 1906, there was a proposition made to her to sell this mortgage and it was then a lawyer was consulted and she was told to sell it.; that she had to have an assignment of it, and in consequence of that advice the assignment of January 22, 1906, was prepared and executed ; that subsequently, in February, 1907, she sold the mortgage to her brother for $16,000 ; that there was at that time due on the-mortgage $20,000, as she had received from the mortgagor three payments on account before she sold
On behalf of "the defendant Samuel Tischman, the mortgagor, was called and testified that the mortgage was an installment mortgage by which he was to pay $2,100 and interest every six months > that in September, 1905, he was informed by Newman- Sofranski that his wife held the mortgage and directed to make the payments of interest and installments to her; and that in pursuance of that
I think, therefore, the findings of fact by the learned trial court that this transfer of the mortgage was "made for the purpose of hindering, delaying and defrauding the bankrupt’s creditors are
There was much evidence accepted that was incompetent. Thus, the court admitted in evidence letters written in March, 1906, from the attorney for the bankrupt who was not a party to the action calling a meeting of his creditors and making an offer of thirty cents on the dollar. The bankrupt’s attorney was called as a witness and testified that in the month of January he was consulted by the bankrupt and was then asked a series of questions as to what he thought of the bankrupt’s property, whether he considered an offer of thirty cents on the dollar to the bankrupt’s ■ creditors was a fair offer, and how much he thought he could offer them. This evidence seems'to have been all inadmissible. The plaintiff also offered in evidence the pleadings in a judgment creditor’s action commenced against the defendant Eva Sofranski in 1907, an injunction order which restrained her from transferring this mortgage, and a bond given by the defendant Sofranski for $1,500 conditioned upon the defendant paying to the plaintiff in that action such damages as should be awarded. This seems to have been incompetent. It was over a year after the execution of the assignment and after defendant Sofranski had transferred the mortgage to the defendant Solomon. The plaintiff also offered in evidence the original schedules in bankruptcy signed and sworn to by the bankrupt, Hewman Sofranski, on the 18th day of January, 1907. This was a year after the formal transfer was made of the mortgage and .was incompetent as against these defendants.
Without discussing the other questions presented in this case, from what has been said it follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin.and Scott, JJ., concurred ; Laughlin, J., concurred in result; Houghton, J,, dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.