15 N.Y.S. 901 | N.Y. Sup. Ct. | 1891
Lead Opinion
In January or February, 1889, Mr. Josiah A. Hyland, one" of the defendants, found on the table in his private office a written instrument purporting to have been executed by Mr. Jose F. Navarro, the other defendant, on the 31st do of December, 1888, whereby that gentleman transferred- to him all his right, title, and interest in and to five policies of life insurance for $10,000 each, subject to a claim thereon of $15,000 by Charles Coudert, as executor, for which Mr. Coudert held the policies as collateral security. The plaintiff is a judgment creditor of the defendant Navarro, and has brought this action to have the assignment of these policies set aside on the ground that it was made with intent to hinder, delay, and defraud Navarro’s creditors. At the close of the evidence offered to sustain the plaintiff’s case, the learned judge who presided at the trial directed a dismissal of the. complaint, and from the judgment entered against him upon this decision the plaintiff has appealed. If the evidence was such as would have justified a finding in favor of the plaintiff, it was error to dismiss the complaint at that stage of the case. The rule to this effect is well settled. Scofield v. Hernandez, 47 N. Y. 313; Place v. Hayward, 117 N. Y. 487, 23 N. E. Rep. 25. It has been necessary, therefore, to go carefully through the testimony, to see whether it presents no questions of fact which it would have been the duty of a court to submit to the jury upon a jury trial; or, in other words, whether the case for the defendants was so clear, upon the plaintiff’s own showing, as to entitle them to judgment. I do not think it was. It seems to me that the proof would have sustained a finding that the assignment was made in bad faith, and with an intent to hinder and delay creditors, although it did not necessarily lead to that conclusion. Mr. Navarro was in serious pecuniary emhairassments at tbetimeof the transfer, and Mr. Hyland knew it. No money passed between them then. According to Mr. Hyland, the consideration for the assignment consisted of a number of claims which he had against Mr. Navarro, growing out of past transactions with that gentleman, and aggregating, with interest, upwards of $19,000, for which he accepted in payment these five policies of life insurance, the value of which he assumed to be from $20,000 to $25,000. An examination of the several items which go to make up this consideration, and the testimony relating to them, readily shows that the proof in almost every instance is susceptible of conflicting inferences, and is favorable or unfavorable to the defendants, according to the view which is taken of it. The first item is one of $7,000 alleged to have been loaned to Mr. Navarro. “He borrowed $7,000 cash from me,” says Mr. Hyland, “in 1880, down, covering a period of two or
The other items of the alleged consideration are the payment by Mr. Hyland of a deficiency judgment for nearly $2,600, which Mr. Navarro was clearly under a moral obligation to pay, and a claim of $2,000 for office rent for Mr. Navarro’s suns, which the father, according to Mr. Hyland’s testimony, agreed to pay, beginning with the time when the young men were admitted to the bar. Conceding the indebtedness of Mr. Navarro, so far as these two items are concerned, they would not constitute an adequate consideration for the transfer of the insurance policies, if there was no real claim in Mr. Hyland's behalf for money loaned in the mining stock transaction, and on account of legal services rendered. I have shown that the proof would justify, although it does not require, a rejection of his claim in these respects; and hence it follows that, upon the evidence, the trial court could have found that the difference between the actual consideration for the assignment, and the value of the property assigned, was so great as to indicate an intent to hinder and delay his creditors on the part of the assignor, which intent was shared by the assignee, or of which he had notice. In such a case, notice of the fraudulent design could well be imputed to the assignee from his own knowledge that the debt due to him was so much less than the value of the property transferred in ostensible payment thereof. For these reasons
Van Brunt, P. J., dissents.
Code Civil Proc. N. Y. § 1871. provides that, “where au execution against the property of a judgment debtor * * * has been returned wholly or partly unsatisfied, the judgment creditor may main'ain an action against the judgment debtor, and any other person, to compel the discovery of anything in action, * * * to prevent the transfer thereof, or the payment or delivery thereof, to him, or to any other person, and to procure satisfaction of the plaintiff’s demand. ”
Concurrence Opinion
I concur. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.