74 N.Y.S. 159 | N.Y. App. Div. | 1902
The plaintiff’s- judgment is founded on a finding that a chattel mortgage which the defendant’s intestate gave to the defendant for $15,000 was made with intent to hinder, delay and defraud creditors, in which intent she participated. On appeal from a judgment in favor of the defendant in an action brought by another creditor •the same mortgage was the object of attack, but in that case the ■court at Special Term found that the plaintiff had failed to establish the allegations of her complaint, and concurring in that view this court affirmed the judgment. (See Edmondson v. Hamilton, 60 App. Div. 630.) In the present case the evidence abundantly sustains the findings of the court at Special Term and entitles the plaintiff herein to the relief which has been granted.
"Without entering- into minute details, it is sufficient to say that the intestate while engaged in the livery business-in the month of June, 1897, had reason to apprehend that a number of suits would
The declarations of the deceased were competent as evidence against the defendant, notwithstanding that they were made after the mortgage, inasmuch as he still retained full possession of the
The mortgage is not available against the plaintiff, even assuming-that the defendant had a just claim against the decedent for $1,800-at the time of its execution • and delivery. The entire security is-tainted by the fraud. (Davis v. Leopold, 87 N. Y. 620; Baldwin v. Short, 125 id. 553.) As was said in Hardt v. Schwab (72 Hun, 109, 112), “ a creditor having a just claim against a failing debtor must not Use it for the purpose of placing the property beyond the. reach of other creditors and for the benefit of the failing debtor.. If he does he is ■ liable to refund any sum that he has acquired by such attempt, and if it results in a loss of his claim, it is not too-severe a punishment for the offense.” .
Although the plaintiff’s entire claim may have been created since-the filing of the mortgage and with knowledge of its existence, the-defendant may not defeat it under the mortgage claim. The fact-that the plaintiff’s debt was subsequently contracted is not con-1 elusive (Savage v. Murphy, 34 N. Y. 508; Shand v. Hanley, 71 id. 319), and the assurance given the plaintiff that she might extend, credit to the deceased with safety, notwithstanding the mortgage,, and -which assurance must, under the circumstances, -be regarded as-binding upon the defendant, if not made with her actual concurrence, adds an equitable consideration of great weight in reaching this-conclusion.
The other points raised by the appellant have been examined, as-also the assigned errors in ruling, and nothing has been found to-compel reversal.
The judgment should, therefore, be affirmed.
All concurred.
Judgment unanimously affirmed, with costs.