22 N.Y.S. 1012 | N.Y. Sup. Ct. | 1893
This action was brought to recover certain funds in the hands of the defendant, and to set aside a conveyance of real estate on the ground that the same was made in fraud of the rights of creditors. The facts found by the trial court are, in substance, as follows; On the 17th day of September, 1878, Almond Haviland died, leaving a last will and testament, in which he bequeathed all of his real and personal estate to his wife, Phoebe Haviland, during the term of her natural life. The property devised and bequeathed by him consisted of a house and lot in the village of Geneva, and a certain mortgage upon premises in the state of Michigan, executed by Henry S. Weaver and wife. On the 31st day of April, 1880, Phoebe Haviland sold and assigned the mortgage to one John D. Fish. At the time of making such sale she represented to Fish that she was the sole owner of the mortgage, and, to induce the purchase thereof by him, falsely and fraudulently represented that there was due and unpaid upon it the sum of $2,600, whereas in fact there was due and unpaid the sum of only $2,100. Thereafter Fish brought an action against her in the state of Michigan, where the assignment of the mortgage was made, to recover damages for the false and fraudulent representations made by her to him, and upon the 9th day of June, 1881, duly recovered a judgment therein for the sum of $454.64 damages and $50.36 costs. Thereafter he brought an action against her in this state upon the judgment so recovered in the state of Michigan, and on the 9th day of March, 1886, recovered a judgment, that was entered in the Ontario county clerk’s office, for $667.47 damages and costs. An execution was issued thereon to the sheriff of that county, it being the county in which she resided, and the same was returned wholly unsatisfied; and be
This action was commenced on the 13th day of February, 1892, and, as we have seen, the judgment upon which this action was founded was recovered on the 9th day of March, 1886. Six years, therefore, had not elapsed since the recovery of that judgment and the return of the execution thereon. The right of the plaintiff to maintain this action did not accrue until after the recovery of the judgment against Mrs. Haviland in this state, and the return of the execution thereon unsatisfied. Code Civil Proc. §§ 1871,1872.
“An action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which on the 31st day of December, 1846, was cognizable by the court of chancery. The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the -fraud.”
These provisions must be construed together, and, so construed, it follows that the plaintiff’s cause of action is not deemed to have accrued until the discovery of the fraud by him, or the person under whom he claims, and not until after his right to maintain the action has accrued, by the recovery of the judgment against Mrs. Haviland in this state, and the return of the execution thereon unsatisfied. Gates v. Andrews, 37 N. Y. 657; Eyre v. Beebe, 28 How. Pr. 333. The cause of action herein is one covered by the subdivision of the section above quoted. The conclusion of the trial court was therefore correct, and should be sustained.
The judgment should be affirmed, with costs. All concur.
These sections give the judgment creditor, on return of the. execution unsatisfied, the right to maintain an action against the judgment debtor and any other person to compel a discovery, and to reach property fraudulently conveyed by the judgment debtor.