201 A.D. 158 | N.Y. App. Div. | 1922
The complaint alleges the following: That on or about the 17th day of May, 1918, the plaintiff and the defendant entered into a contract the terms of which were as follows: “ This agreement, made this 17th day of May, 1918, between James Anderson, of the first part, and Theodore F. Kalbfleisch, of the second part, is as follows: Said Anderson has this day paid to said Kalbfleisch thirty-five thousand ($35,000) dollars, and has deposited with James A. Parsons and William T. Byrne, as trustees, seventy-five hundred ($7,500.00) dollars, to be held by the latter as security for any further sums due Kalbfleisch and to secure him against any liability for notes he has endorsed for Anderson. This is not an admission by said Anderson that the liability amounts to $42,500.00, and if it is less, the difference shall be paid him from said deposit, and if it is not sufficient, by said Kalbfleisch, personally. This is not an admission by said Kalbfleisch that the liability is not more than $42,500.00, and if it is, the liability remains subject to said payments, the said $7,500.00 in such event to be paid Kalbfleisch. The parties are to meet as soon as possible at Glens Falls, to attempt to state a balance by agreement; ” that prior to the 12th day of September, 1918, the defendant falsely represented to Henry W. Williams, the plaintiff’s attorney, that he was indebted to his son in the sum of $40,000, and to other creditors in the sum of $110,000; that he stated to the plaintiff’s attorney, Henry W. Williams, that unless the plaintiff paid to the defendant the sum of $10,000 the defendant would immediately file a petition in bankruptcy, and in such proceedings would testify that at the time the agreement of May 17, 1918, was made the plaintiff knew that the defendant was insolvent; that he further stated that upon such testimony it would be held in bankruptcy proceedings that the payment of $35,000 by the defendant to the plaintiff recited in the agreement, was an unlawful preference; that the plaintiff did not know or believe that the defendant was insolvent, if such were the fact, and that the statements thus made by the defendant were wholly untrue; that the payment of the sum of $35,000 was not an unlawful preference, as was well known to the defendant at the time he made his threats and statements; that the plaintiff believed that if he
It will be noted that the alleged threats are stated to have been made on or before September 12, 1918. This was within four months after the transfer of May 17, 1918. There was sufficient time remaining, therefore, for the defendant to file a petition in bankruptcy and, by establishing that to the knowledge of the plaintiff he was insolvent on May 17, 1918, to avoid the transfer then made. (See Bankruptcy Act [30 U. S. Stat. at Large, 562], § 60, as amd. by 32 id. 799, 800, § 13, and 36 id. 842, § 11.) Consequently, the plaintiff stood in real and imminent peril of losing the $35,000 which had been paid him, as well as the $7,500 which had been paid to the trustees. This peril, under the allegations of the complaint, lay, not alone in the threatened bankruptcy pro
The orders should be affirmed, with costs.
Orders unanimously affirmed, with ten dollars costs and disbursements in one motion.