31 N.Y.S. 1042 | N.Y. Sup. Ct. | 1895
This action was begun June 30, 1892, by a judgment creditor of William H. Riker, to set aside a transfer of personal property by him to William B. Riker as fraudulent and void as against creditors. By the twelfth finding of fact it is found that the appellant, the transferee, was not the creditor of William B. Riker, his son, the transferer, in an amount equal .to the value of the property transferred; and by the thirteenth finding the court found that the transfer was made by William H. Riker to said William B. Riker “with the intent on the part of said William H. Riker to hinder, delay, and defraud the creditors of said William H. Riker, including the said William Comyns, and said transfer was accepted by said
The claim of the plaintiffs amounts to $5,095.92, with interest from April 7, 1892, besides the costs recovered by the judgment,—$534.25. By the judgment the transfer of personalty valued at more than $90,-000 was set aside as fraudulent as against creditors, and a receiver was appointed, who was directed to convert the property into money. The following is the sixth conclusion of law:
“(G) That the receiver be directed to take said moneys, notes, and accounts, and out of the proceeds thereof to pay the plaintiffs’ judgments, with costs of this suit, and hold the balance subject to the further order of the court.”
As between the transferer and transferee, the transfer was valid, and the court should not have set it aside, except in so far as it was necessary to pay the amount due the plaintiffs, as fixed by the judgment and the expenses of executing it.
The judgment should be modified by providing that the transfer be set aside as against the plaintiffs, and that, upon the satisfaction of the judgment and the payment of the expenses of enforcing it, the property be returned to the appellant. In case other creditors have acquired liens on the property, it will remain subject to such liens. On the settlement of the judgment, the appellant sought to have this provision incorporated in it," but was Unsuccessful, and an appeal became necessary to remedy this error. The appellant is entitled to recover the costs of this appeal, to be deducted from the amount of the plaintiffs’ recovery. As modified, the judgment is affirmed.