82 A.D. 348 | N.Y. App. Div. | 1903
I am of the opinion that the deed from Smith to Coope and the mortgage from Coope to Shuttleworth were made, executed and delivered with the intent of hindering, delaying and defrauding the creditors of Smith other than the defendant Shuttleworth. At the time said deed and said mortgage were delivered Smith was largely in debt. His creditors were pressing him, and the effect of the execution of the deed was that practically all of his property was put in the possession of Coope and away from Smith’s creditors. Although Smith had parted with the apparent title to the prop
The defendants Coope and Shuttleworth contended on the trial that the judgment entered on December'27,1899, for $1,988.77, should not be received in evidence, because no affidavit of the authority of the-attorney was annexed to the acceptance of. the offer of judgment. This objection is without merit. It is well settled that the statutory provision was intended for the benefit and protection of the parties-to the action, and that the absence of the affidavit of authority is a; mere irregularity of which third parties cannot" take advantage (Citizens’ National Bank of Towanda v. Shaw, 46 Hun, 589), and oan be and was waived by the defendant against whom the judgment was. entered. (Phyfe v. Eimer, 45 N. Y. 102.) The defendants Coope- and Shuttleworth also objected to. the admission of the judgment, entered December 27, 1899, for $3,198.20, on the grounds that the-