57 Barb. 155 | N.Y. Sup. Ct. | 1867
The facts found by the referee do not sustain his conclusions of law, or the judgment rendered in the action. If the defendant intended to defraud the creditors of Lowd by taking and converting the property of Lowd into cash, such intent was rendered harmless by his delivering the proceeds of the sale to Lowd or his wife, who was his authorized agent; and if he subsequently received a portion of such proceeds, with like intent, from the agent of Lowd, for the use of Lowd and his wife, and to be handed over to them, or for their use as they might want, such intent was rendered harmless by his paying over the money to Lowd’s creditors or to Lowd or his wife by Lowd’s direction. ' The creditors of Lowd could not be injured by the defendant’s possession of the property of Lowd, or his sale of such property, or his possession of the proceeds of such sale. Either could be reached in the hands of the defendant by any creditor who was in a condition to seize the property under execution against Lowd, or its proceeds under proceedings supplementary to- execution or creditor’s suit. Besides, it appears from the proceedings of the referee, that while any of Lowd’s property, or the proceeds of its sale, were in the possession of the defendant, the creditor upon
The judgment should be reversed and a new trial or-, dered, with costs to abide the event.
Xcnnes, Potter and PoseJcrms, Justices.]