6 N.Y.S. 189 | N.Y. Sup. Ct. | 1889
This judgment should be affirmed upon the authority of Bank v. Burger, 15 H. Y. St. Rep. 101. The opinion of Patterson, J., at special term, was a correct exposition of the scope of that decision, and it is here adopted. We may add that the case for the appellants is not improved by the stipulation which has been added to the previous record. Hurlbut and Healy’s ignorance of the entries on the firm books, with regard to Mrs. Burger’s account, does not alter the situation. The important and crucial fact is that they knew she was being preferred. They were thus put upon inquiry as to her claim. The result is that they knowingly and deliberately preferred a person who was not a creditor of the firm. To say that they believed she was a creditor, and did not know the contrary, is simply to say that they were morally guiltless of the fraud committed by their acts. They must be held to be concluded by their acts, and to have intended the necessary consequence thereof. It would be a strange doctrine which would uphold an assignment containing fraudulent preferences, because two of the assignors believed, without inquiry and substantially without reason other than confidence in their copartner, that the preferences W'ere genuine claims against the firm. The logic of such a position would be that the actual commission of such a fraud could not be redressed unless all the perpetrators had notice of the infirmity of the proposed preference. That would subordinate the act of accomplishment to the scienter; that is, it would subordinate the real intent, namely, the intent to do the guilty act, to the intent to do it knowing it to be guilty. That is not what the law contemplates, and such a doctrine would nullify the statute. The true rule is that an assignment is made with intent to hinder, delay, and
