67 Misc. 74 | N.Y. Sup. Ct. | 1910
Lead Opinion
The plaintiffs sue upon a bond given by the defendants on a third party claim to goods levied upon under a warrant of attachment, in an action brought by the plaintiffs against one Chill. The evidence established that Chill was indebted to the plaintiffs and to several others; that, on January 27, 1909, Chill transferred the stock and fixtures of a grocery store of which he was the owner to Sakow by a bill of sale, and that, on February 2, 1909, by a bill of sale, Sakow transferred the property to the defendant Levine. It was. also proved that, at the time the plaintiffs caused the property to be levied upon under the warrant of attachment in this action against Chill,- the property was delivered to the defendant Levine upon the latter giving a bond to the plaintiffs. This bond provided as follows: “If in an action upon this bond commenced within three months thereafter, the said claimant will establish that he is the general owner of the property claimed .at the time of the seizure; or if he fail so to do that-he will pay to the said Joseph Seeman, Sigel W. Seeman, Sylvan L. Styx and Carl Seeman, the value thereof with interest, then this obligation to be void, otherwise to remain in full force and virtue.” It was also proved that no notice of any transfer by Chill of his property was given to his creditors. One of the issues upon the trial was whether the bill of sale which Chill executed to Sakow and the transfer of his property which took place under it were valid or invalid. It is conceded that, except for the presumption that the sale was fraudulent and illegal which arises from section 44 of the Personal Property Law, the evidence was insufficient to justify a judgment for the plaintiffs. Section 44 of the Personal Property Law provides as follows:
“ Sec. 44. Transfer of goods in bulk.— 1. The transfer of any portion of a stock of goods, wares or merchandise otherwise than in the ordinary course of trade, in the regular and usual prosecution of the transferrer’s business, or the transfer of an entire such stock in bulk, shall be presumed to be fraudulent and void as against the creditors of the transferrer, unless the proposed transferee shall, at least five days before the transfer, in good faith, make full and
“ 2. The transferrer shall at least five days before such transfer fully and truthfully answer in writing such transferee's inquiries as to the names and addresses of the transferrer’s creditors, and if such transferrer shall knowingly or wilfully refuse so to answer or make or deliver or cause to be made or delivered to such transferee any false or incomplete answer to such inquiries, said transferrer shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished accordingly.
“ 3. Transfers under this section shall include sales, exchanges and assignments, but nothing contained in this section shall apply to transfers by executors, administrators, receivers, assignees under a voluntary assignment for the benefit of creditors, trustee in bankruptcy, or by any public officer under judicial process.”
The appellants assert that this statute is unconstitutional and contend that, even if it is constitutional, it is inapplicable to the present case. A former statute which declared that a sale made contrary to its terms was “ fraudulent and void as against the creditors of the seller” was declared to be unconstitutional in Wright v. Hart, 182 N. Y. 330. The present form of the statute is the result of an amendment passed in 1904; and, as amended, the statute does not declare that such sales “shall be fraudulent and void,” but merely that they “will be presumed to be fraudulent and void.” In its present form the constitutionality of the statute has been upheld by the Appellate Division of the Second Department in Sprintz v. Saxton, 126 App. Div. 421. We think that this decision meets the objections which are now urged against the constitutionality of the statute.
The contention that the statute is inapplicable to the
The evidence was sufficient to establish the defendants liability under the bond, and the judgment should be affirmed.
Dissenting Opinion
The only evidence from which it can be inferred that defendant had any knowledge that Sakow had bought the goods in bulk from Chill is that given
I do not regard this conversation as sufficient notice to the defendant that his vendor had previously bought the goods in bulk, so as to put him upon inquiry whether his vendor had or had not fully complied with the provisions of section 44 of the Personal Property Law. Consequently I do not consider defendant chargeable with knowledge that there was even a presumption of any defect in his vendor’s title to the goods.
The judgment below should be reversed.
Judgment affirmed.