Hurwitz v. Hurwitz

30 N.Y.S. 208 | City of New York Municipal Court | 1894

Hewburger, J.

The complaint alleges that the plaintiff, on the 7th day of January, 1893, recovered a judgment against the defendant 'Hurwitz; that thereafter, and on the 18th day of January, 1893, execution was issued and returned unsatisfied. ’ ■

That on the 9th day of January, 1893, the defendant Hurwitz, for a consideration of $900, transferred certain personal property to the defendant Rouse; that the bill of sale was given without consideration and with the intent to hinder, delay and defraud the plaintiff; that on the 9th day of January, 1893, the defendants wrongfully, unlawfully, maliciously, willfully and fraudulently combined and conspired, together to hinder, delay, cheat and defraud the plaintiff, and to prevent the collection of the judgment recovered by the plaintiff against the defendant Hurwitz, and to remove the property of the defendant, and to so dispose of the same that the same might not he reached by said execution, and that, as a result of such wrongful, willful, malicious and fraudulent acts of conspiracy on the part of the defendants, the said personal property of the defendant Hurwitz was removed and disposed of by the defendants so that the same could not be reached by said execution, and that the plaintiff was damaged in the sum of $617.90.

The answer of the defendant Rouse is a general denial, and alleges that the bill of sale was given for a valuable consideration and in good faith.

The answer of the defendant Hurwitz is in substance a general denial.

On the trial, both at the opening as well as at the conclusion of plaintiffs case, defendant moved to dismiss the complaint on the ground: That the action should have been brought

in equity to set aside the bill of sale from the defendant Hurwitz to Rouse, and not in law, as this action is brought, which motions were denied and exceptions duly taken.

We think the trial justice properly denied the motions and correctly stated the law in his charge to the jury. See Quinby v. Strauss, 90 N. Y. 664.

The case of Braem v. Merchants' National Bank, 127 N. Y. 509, to which the, appellants’ counsel has referred, has no application to this case. In that case the plaintiff recovered a judgment against a manufacturing company on the same day the defendant obtained a judgment against the same company upon an offer and acceptance. In an action against the defendant for damages for fraud in obtaining the judgment, the court properly held that it was a subject of equitable jurisdiction as to who was entitled to the fund arising from the-sale under the several executions. In this case no such question arises.

We think, therefore, that the judgment must be affirmed, with costs.

Fitzsimons and Oonlan, JJ., concur.

Judgment affirmed, with costs.