65 N.Y.S. 122 | N.Y. App. Div. | 1900
By the judgment from which this appeal is taken, it was determined that the general assignment of Louis Waefelaer to the defendant Rofkar was made with intent to hinder, delay and defraud creditors, and particularly the plaintiff’s assignor,- the Trenton Potteries Company, and it was adjudged that the assignment be set aside; that the plaintiff have a lien upon the property assigned and its proceeds in the hands of the assignee, and that, such property having been converted by the assignee into money and there being more than sufficient to pay the amount of the indebtedness of the assignor to the plaintiff, the assignee pay to the plaintiff the amount of such indebtedness with the costs and disbursements of the action. The plaintiff was not a judgment creditor and it is claimed that as a consequence he had no standing to maintain this action. The same point' was raised on a prior appeal in this action and it was held by this court that, under the circumstances disclosed in. the record on that appeal, the action could be maintained by the plaintiff ás a simple creditor. (Patchen v. Rofkar, 12 App. Div. 476.) These circumstances are unchanged in the record now before us.
We are now asked, however, to reconsider the subject, it. being urged by the appellant that there was a failure of both counsel and the court to consider certain provisions of the Code of Civil ■ Procedure which it is claimed apply to and directly affect the question of the plaintiff’s right to sue as a general creditor. It is contended by the appellant that the rule that the remedy at- law must be exhausted by the recovery of a judgment and the return of an execution unsatisfied before a suit in equity can be maintained to set aside such an instrument as that attacked here; applies, because the
The ground upon which the decision upon this branch of the case •on the former appeal proceeds is, that the plaintiff could not secure -a judgment in this State against Waefelaer for the amount of his indebtedness before commencing this action ; that he was not within "the jurisdiction of this State and no personal service of the summons could be made upon him and that no service could be made by publication of the. summons so as to- procure a personal judgment against him inasmuch as no attachment could be levied upon .any property of his in this State after the making of the assignment. The effect of this decision was that the plaintiff could maintain this action because there was no remedy at law open to him and, therefore, the case was one in which he was entitled to relief, it not being within the contemplation of the statute relating to creditors’ -actions — the. action finding support in the inherent powers of a -court of equity.:
The provisions of the Code now relied upon by the appellant have mot given to a creditor, situated as this plaintiff, any additional right
We see no reason for changing the views expressed on the former appeal concerning the plaintiff’s right to maintain the action.
Upon the merits of the case, the fraudulent intent imputed to Waefelaer was fully sustained by the evidence. Two very large-debts are claimed to have been fictitious, one of $15,500 to his wife and the other of $13,750 to his .brother, both for alleged loans of money. A payment of the sum of $1,200 in addition was made to-his wife a few days before the assignment was executed, and it is claimed to have been for interest upon the indebtedness to the wife.. In the opinion delivered in the court below the evidence relating to these alleged fictitious debts is minutely examined. The trial judge" did not consider the proof sufficient to sustain the charge of fraud-in the indebtedness to the brother, "but was convinced that the alleged
The judgment should be affirmed, with costs.
Rttmsey, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.