12 N.Y.S. 762 | N.Y. Sup. Ct. | 1890
The National Broadway Bank is a judgment creditor of the defendant David G. Yuengling, Jr., having recovered 20 judgments against him as the general partner in a limited copartnership doing business under the firm name and style of D. G. Yuengling, Jr., the special partner being the defendant William Belden. The present suit is brought by the bank to-set aside certain conveyances, transfers, and assignments made by this firm of D. G. Yuengiing, Jr., and by the defendants Yuengling and Belden, to a. corporation known as the “D. G. Yuengling, Jr., Brewing Company, ” and also to have certain mortgages adjudged fraudulent which had been executed by the said corporation to the ¡Farmers’ Loan & Trust Company as trustee, in so far as the same cover property against which the plaintiff’s claims would, be enforceable if still in the hands of the limited partnership or of the members of that firm. The transfer and mortgage thus attacked were made under and pursuant to an agreement between David G. Yuengling, Jr., and William Belden, composing the firm already mentioned; David G. Yuengling, Jr., individually; the New York & Staten Island Brewing Company; such creditors of the three parties already mentioned as actually signed the instrument; and
• We think the demurrer ought to have been sustained. The complaint does not merely attack the transfers and conveyances of the judgment debtors’ property which were made pursuant to the agreement that has been mentioned, but it assails the agreement itself. In the fifth subdivision of the complaint is an express averment that “the said agreement was made by the said firm of D. G. Yuengling, Jr., and the said David G. Yuengling, Jr., witli intent to hinder, delay, and defraud their creditors, and, among them, this plaintiff;” and further, that all the parties to the agreement had notice at the time it it was executed of such intent to hinder, delay, and defraud; and in the demand for judgment the first prayer for relief is that the said agreement of October 22, 1887, be declared in all respects null and void as against the plaintiff. The averments of the complaint, as already set forth, suffice to show the existence of an interest on the part of the Hew York & Staten Island Brewing Company and the signing creditors in opposition to any judicial action which might invalidate the agreement even as to a third party, like the present plaintiff; and we do not see how the court could properly adjudicate that this corporation and these creditors entered into the agreement knowing it to be fraudulent, as the complaint charges that they did, without affording them an opportunity
Van. Brunt, P. J. I concur in result.
Barrett, J. I concur.