2 Daly 231 | New York Court of Common Pleas | 1867
This is not an action brought by a creditor to enforce the collection of a judgment after he has exhausted his remedy at law, and in which the return of an execution unsatisfied is indispensable before he can invoke the equitable aid of the court; but it is an action by creditors who, in a suit brought by them to recover their debt, obtained an attachment against their debtor for fraudulently assigning his property, and who, having recovered judgment in that action, and issued execution upon it, bring the present action to set aside the fraudulent assignment, which is an obstruction to their collecting their judgment by a levy and sale of the debt- or’s property under the execution. By the issuing of the attachment, the plaintiffs acquired a lien upon the property of the debtor (Falconer v. Freeman, 4 Sand. Ch. R. 565; Rinchey v. Stryker, 26 N. Y. 75); and this lien, after the plaintiffs have recovered a judgment, entitles them to the equitable intervention of the court to set aside a fraudulent transfer of the property upon which the lien has attached, or any fraudulent obstacle in the way of enforcing the lien (Greenleaf v. Mumford, 30 How. Pr. 30); it being the design of the Oode that the attachment should be a security for the satisfaction of the
The next question is, whether the finding of the judge, that the assignment was not made with a fraudulent intent, can be sustained. The denial in the answer, for want “ of knowledge sufficient to form a belief,” of the allegation in the complaint, that the firms of Howlett & Cook and of Twining & Cook were insolvent when the joint property belonging to each of these firms was sold to Cook, is not in the form prescribed by the Code. The denial must be of any knowledge or information sufficient to form a belief (Edwards v. Lent, 8 How. Pr. 28; Blake v. Eldred, 18 Id. 241; Elton v. Markham, 20 Barb. 349; Hackett v. Richards, 3 E. D. Smith, 13), and this fact, not being properly denied, is admitted. Treating this material fact then as admitted, it appears that Cook became the purchaser of the whole of the property of each of these firms, he at the time of the purchase being a partner in each firm. In his hands, the property thus acquired should have
The plaintiffs having shown that they were entitled to the equitable.relief which they sought, the decision of the judge at the special term was erroneous, and the judgment must be reversed.
Judgment reversed.