33 N.Y.S. 143 | N.Y. Sup. Ct. | 1895
The defendants became husband and wife upwards of 20 years ago. The deed of the lot in the Beechwood tract was made to both of them. There is evidence tending to prove and the court found that Mrs. Ester was then the sole beneficial owner of the premises, and that her husband was made a grantee in the deed without her consent or knowledge. It was made by the Beechwood Homestead Association, of which she was and her husband was not a member. The trial court found that the purpose of conveyance through the third person to her was made to correct the mistake in the first deed. This finding of the court has the support of evidence. The defendant Henry J. Ester was for some years the proprietor of a saloon and hotel, grocery and meat market, and on the same premises persons were entertained as boarders. The wife claims that the latter was her separate business. In August, 1890, Mr. Ester went abroad, and was absent about two months. ■ During that time his wife had charge of his business, and received from the proceeds of it $600, more or less, which sum the plaintiff alleges she retained, and has not accounted for to the other defendant. While there is some confusion in the proof upon the subject, the evidence warranted the conclusion that whatever amount Mrs. Ester did receive from the business of her husband during his absence was paid to and received by him from her after his return. The more substantial charge of fraudulent infirmity has relation to chattel mortgage of date April 7, 1892, made by Mr. Ester to his wife, and the bill of sale of the same personal property made by him to her on April 25, 1892. The indebtedness upon which the plaintiff’s judgment was recovered arose in 1889, and was against the defendant Henry J. Ester and Charles F. Schroeder, in the name of Charles F. Schroeder & Co. The action was commenced against them in 1890. The defendant Ester appeared and answered the complaint. The other
The charge against the validity, as against the creditors of Mr. Ester, of the deed from him, through another, to Mrs. Ester, of the lot in the Beechwood tract, and the charge that the money received by her from his business during his absence was retained by her in fraud of his creditors, are not sustained by the evidence. They are alleged in the complaint as causes of action distinct from that relating to the chattel mortgage and bill of sale, and, as this is an equity action, no reason appears why a new trial may not be confined to the latter cause of action alone. The statute requiring the production by a foreign corporation of a certificate is ap: plicable only to actions upon contract. Laws 1892, c. 687, § 15. This is not such an action. The judgment, so far as it relates to the issue arising out of the alleged cause of action founded upon