12 N.Y.S. 359 | N.Y. Sup. Ct. | 1890
Lead Opinion
The defendant was a corporation existing under the laws of this state, and the action was brought by the plaintiff for goods sold and delivered to the company, upon which the amount claimed to be due was the sum of $2,556.56. This amount was stated in the affidavit of one of the plaintiffs to be due to them over and above all counter-claims known to him, or to the plaintiffs. The ground upon which the attachment was issued was that the defendant had assigned, disposed of, and secreted property, or was about todo so, with intent to defraud its creditors; and the affidavit of one of the plaintiffs’ attorneys was chiefly relied upon as proof of this intended disposition of the defendant’s property. It was not stated or shown in the affidavit that any of the defendant’s property had been directly disposed of in this manner,.but it was affirmed that judgments.had been recovered against the defendant, under which this disposition of its property was intended to be made. What was charged was, in substance, that the defendant was about to transfer or assign its property in contemplation of its existing insolvency# in violation of section 4, tit. 4, c. 18, pt. 1, Rev. St. The manner in which that was to be done was by the recovery of these judgments, and the levy which had been made under executions issued upon them on all the property of the defendant. But as to all the judgments, not reeoverd by the wife of Mark Mayer, who was the president of the corporation, no facts whatever were disclosed, or sustained by the affidavits, proving that they had proceeded from any act of this, or any other officer, of the corporation. All that appeared as to those judgments was that they had been recovered on the same day, and executions had been issued and levied on the property of the defendant; and, as to them, this was not sufficient to prove that the defendant was about to transfer or assign any of its property in contemplation of its existing insolvency. Varnum v. Hart, 119 N. Y. 101, 23 N. E. Rep. 188.
But, as to the judgment recovered in favor of Dessa Mayer on the same day as the others were recovered, the facts were more favorable to the right of the plaintiffs to an attachment. But they still failed to prove that the president of the corporation, who was the husband of this plaintiff, had officially interfered in any manner to induce the commencement of the action, or secure the recovery of the judgment in favor of his wife. That her judgment was recov
Dissenting Opinion
(dissenting.) The application for the attachment rested upon "the allegation that the defendant had assigned, disposed of, and secretedprop•erty, or was about to assign, dispose of, and secrete property, with intent to defraud its creditors. The affidavits upon which the attachment was granted allege that the defendant is a corporation, and array the recovery of several judgments through the alleged connivance of the defendant, and particularly one in favor of Dessa Mayer, the wife of Mark Mayer, as to which it is alleged that the defendant, Mark Mayer, authorized the attorney by whom it was procured to commence the suit in the name of his wife. This was an affirmative act on the part of the corporation. It set in motion the legal process by which a judgment was to be obtained against it, and in that respect differs in some respects from the case of Varnum v. Hart, 119 N. Y. 101, 23 N. E. Rep. 183. In that case, although the badges of fraud were considered to be ample in the court below, the court of appeals held that, while the corporation did no affirmative act, they were not subject to the charge of having violated the statute, (Rev. St. pt. 1, c. 13, tit. 4, § 4,) which prohibits incorporated companies from making any transfer or assignment in contemplation •of insolvency. It was there said that the officers of a corporation were under no legal duty in the case of its insolvency to take measures to procure a disposition of its property, without preference, among all its creditors. They might, like an insolvent person, permit the creditors to take hostile proceed
Concurrence Opinion
I concur in the result. I cannot see any reason which ¡prevented the husband of Mrs. Mayer from directing the commencement of ■the action which resulted in the judgment.