8 N.Y.S. 823 | N.Y. Sup. Ct. | 1890
Lead Opinion
The practice in this case has long prevailed in the third department, and it ought to be upheld, unless we are required by MacNaughton v. Osgood, 114 N. Y. 574, 21 N. E. Rep. 1044, to declare it improper. The practice, in brief, is this: Equity cases are placed upon the circuit calendar. Eo issues are previously settled. The case is brought to trial before the court. A jury is impaneled, with the understanding that if the court, after the testimony is given, desires to submit any issues to them, the court will frame them then and there in the form of questions, and submit them to the jury for decision. The jury, having heard the arguments of counsel and the charge of the court, render a verdict by answering the questions submitted. The court then approves or disapproves of them. If the court disapprove, it finds the fact in accordance with its own judgment, and finds upon the other issues in the case, and thereupon decides the whole case, making the decision in writing, covering the material issues. In the case before us the record recites that at the close of the plaintiff’s testimony the defendant’s counsel moved for a nonsuit, taking the usual ground that, assuming all the inferences of fact in the plaintiff’s favor, he had made out no case. The court concurred and directed that the complaint be dismissed' upon the merits, with costs, and judgment, signed by the clerk, was after-
The court dismissed the complaint upon the supposed authority of Harvey v. McDonnell, 1 N. Y. Supp. 83. That case has since been reversed. 113 N. Y. 526, 21 N. E. Rep. 695. It is held in that case that a general creditor ■of an intestate may, under chapter 314, Laws 1858, where the administrator-refuses to disaffirm a transfer made by the intestate to defraud creditors, and where the assets in the hands of the administrator are insufficient to pay the debts of the intestate, himself bring an action for his own benefit, and that of the other creditors, to reclaim the propel tv, making the administrator a party. The supposed difficulty in that case was that the general creditor, in the absence of judgment and execution, had no equity, because he had not shown that he had exhausted his legal remedies. The court of appeals held that the act of 1858 dispensed with a resort to judgment and execution in the cases embraced in it. Here the administrator, not the creditor, proceeds. He recognizes the validity of the claims set forth in the complaint, alleges the inadequacy of assets, the fraudulent transfer by his intestate, and asks to set it .aside for the benefit of the creditors. The statute confers upon him the power, and, if the facts are as he alleges, it is his duty to proceed. We think the evidence was sufficient to put the defendant upon her defense.
The defendant’s title to the real estate in question is, in any event, valid against the administrator, except to the extent necessary to satisfy the creditors of the intestate. If upon a new trial the plaintiff should recover, this court iould take to itself the administration of the fund realized from the real estate; but we incline to the opinion that it would be wiser to adjudge that the ■defendant’s title is invalid against the claims of the creditors of the intestate, including such costs as may be awarded the plaintiff, and against such proceedings as may be taken in the due course of administration in the surrogate’s -court for the sale or mortgage of the property, and against the title thus granted. The judgment should provide that the defendant be allowed full
Fish, J., concurs.
Concurrence Opinion
(concurring.) Section 1, c. 314, Laws 1858, gave the right to executors, etc., “or other trustee of an estate * * * for the benefit of creditors, or others interested in the estate, or property so held in trust, ” to set aside a transfer in fraud of the rights of any creditor “interested in any estate or property held by or of right belonging to any such trustee.” I am unable to see that executors or administrators hold the real estate of the deceased in trust, or that such real estate by right belongs to such executors or administrators. I have supposed that the real estate of the deceased passed to heirs or devisees; and since the authority given by that statute is limited to the persons who hold the property in trust, and to the property which is so-held, I do not understand where the authority of an administrator to set aside a fraudulent conveyance of land is to be found. If a debtor bad assigned certain personal property, or all his personal property, to an assignee in trust for creditors, I cannot see how, under this statute, such an assignee could main-, taih an action to set aside a previous fraudulent conveyance of land by the-debtor. The condition of an administrator is analogous. This view is-strengthened by the amendment of chapter 487, Laws 1889, which, leaving the language of the former statute untouched, authorizes the creditor of a deceased insolvent debtor, without having recovered ajudgment, to maintain an action to set aside all transfers, etc., made in fraud of the right, of any creditor. This additional clause is not limited to the property or estate “held in trust” by the administrator, but is general in its terms. Still there are words used in Lichtenberg v. Herdtfelder, 103 N. Y. 302, 8 N. E. Rep. 526, and in Harney v. McDonnell, 113 N. Y. 526, 21 N. E. Rep. 695, which indicate that the court, without referring to the language of the statute, has assumed that the administrator might maintain an action to set aside a conveyance of land. Such a construction seems unnecessary, since the rights of simple contract creditors have been secured by the amendment of 1889. But I feel bound by the dicta in those opinions; and I therefore concur in the opinion of Judge Landon.
