78 N.Y.S. 501 | N.Y. App. Div. | 1902
The defendant, Austin, has been adjudged guilty of contempt on the ground that he executed a false and fraudulent bond in the sum of $600, to discharge a mechanic’s lien on real property, and justified in an affidavit in which he falsely swore that he was worth double the amount of the bond over and above all his debts and liabilities, and exclusive of property exempt from execution.
The bond was dated in August, 1896. In September, 1900, Austin instituted proceedings for involuntary bankruptcy. The schedules showed debts amounting to over $46,000 and no assets. About $28,000 of the debts arose upon bonds secured by mortgage upon .real estate, executed by him previously to the bond in this proceeding. There were equities in the real estate owned and valued by Austin at over $15,000. Some of the mortgages were foreclosed, and some of the real estate was conveyed by Austin for cash or in payment of debts.
“The fact that some years after Satterlee became Insolvent does not disprove his uncontradicted evidence of his solvency when the undertaking was executed. He was engaged in a hazardous business, and some of his debtors in 1878 subsequently became insolvent. We think the facts disclosed did not justify a finding that Satterlee falsely swore to the affidavit of justification. For this reason, and without considering any other question, the-orders of the general and special terms should be reversed.”
I do not think it is established by the plaintiff’s affidavits used on the motion that Austin was insolvent when he executed the bond, much less that he knew that to be the fact. Indeed, so far as the -evidence shows, he was not insolvent.
The order should be reversed.
Order reversed, with $10 costs and disbursements. All concur.