27 N.Y.S. 1059 | N.Y. Sup. Ct. | 1894
This action is brought by a judgment creditor of the defendant Navarro to set aside the transfer made to the defendant Hyland of five life insurance policies upon the life of the defendant Navarro for $10,000 each, on the ground that the same was made to hinder, delay, and defraud creditors of Navarro. The first trial of this action resulted in a judgment dismissing the complaint upon the plaintiff’s case, which judgment, upon appeal to this court, was reversed, and a new trial ordered (15 N. Y. Supp. 901), upon the ground that the proof would have sustained, although it did not require, a finding that the assignment was made in bad faith, and with intent to hinder creditors, and that it was error to dismiss the complaint. Upon the second trial, and upon the whole evidence, as well of the defendants as of the plaintiff, a judgment was rendered dismissing the complaint as to both defendants upon the merits. As upon the first trial, it now appears that “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 day 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’s executor, for which Mr. Coudert held the policies as collateral security. Although the transfer was not personally delivered to the defendant Hyland, but was, as stated, found by him on his table, it appears by the evidence of both defendants that their being placed there
Cash prior to and up to the 24th day of November, 1880........$6,132 00
Interest on same, which the defendant Navarro guarantied to the defendant Hyland on the money given him from November
24, 1880, to December 31, 1888 .............................. 2,981 17
Indebtedness of defendant Navarro to defendant Hyland for professional legal services from in or about 1880 up to December .
31, 1888.................................................... 5,000 00
Indebtedness of defendant Navarro to defendant Hyland for
office rent of defendant Navarro’s two sons..............■---- 2,000 00
Deficiency judgment paid by defendant Hyland on or about February 29, 1888, on a bond given by him at the request of the defendant Navarro for money received by defendant Navarro on a loan on real estate in Eighty-Seventh street, New York
city -----......'............................................. 2,573 11
These claims for moneys advanced, services rendered, office rent, and for the payment of the deficiency judgment, were supported by the testimony of both defendants; and, if such testimony is to be credited, then the findings of the court below were amply sustained, and the judgment should not be disturbed; because it would thus appear that, for an indebtedness of about $18,000, the defendant Hyland had received policies, the cash value of which would not exceed $10,000 over and above the $15,000 for which it was pledged to Mr. Coudert. The fact that the defendant Navarro was insolvent, and that Mr. Hyland knew it, would not prevent the former from securing or paying the latter a valid existing indebtedness; and the giving of a preference to Hyland cannot be successfully assailed by the other creditors. That a debtor has the right to pay the claim of one creditor in preference to and to the exclusion of all the others has been many times decided. Though a criticism can justly be made upon the loose way in which the dealings between the defendants were carried on, and though the usual indicia of indebtedness—such as notes, the presentation of bills or demands for payment, and the keeping of an account showing such indebtedness in the books of the creditor—are wanting, and are susceptible of different inferences, still the testimony' offered of the close and intimate relations between them, the strong financial position which the defendant Navarro once held, and the
Considerable stress is laid upon the fact, as claimed, that the trial judge made certain findings upon insufficient evidence, and, contrary to the plaintiff’s request, refused to make findings which were justified by the evidence. With respect thereto we can but repeat what has been said lately in the case of Faxon v. Mason (decided herewith), 27 N. YH. Supp. 1025, that upon the trial of an action such as this the court is not bound to find the evidence wMch supports the conclusion; all that is required is that there should be sufficient evidence to justify the finding and conclusion that the transfer or assignment was made with or without intent to hinder, delay, or defraud creditors. We find no valid ground for disturbing the decision of the trial judge, and think that the judgment should be affirmed, with costs.