Fort Stanwix Bank v. . Leggett

Reynolds, C. It appears that from about 1853 to 1860 the defendants, Abraham W. Leggett and David Ludlam, Jr., composing the mercantile firm of Ludlam & Leggett, had continuous dealings with the plaintiff in the way of borrowing money in some form, and the result was that the firm became insolvent, owing the plaintiff a large amount of money; so that on the 25th of March, 1861, the plaintiff obtained a *554 judgment against Ludlam & Leggett as copartners or joint debtors for $19,279.41, upon which executions were duly issued to various counties and returned unsatisfied. In the mean time the defendant, Abraham W. Leggett, by voluntary conveyance, put the title of certain of his real estate in Brooklyn in his wife, the defendant, Phoebe W. Leggett. In due time the plaintiff commenced this action to subj ect the real estate thus conveyed to the payment of the judgment and succeeded, and I do not understand that the judgment below is not entirely correct, unless affected by the fact now to be mentioned. It is claimed on behalf of Leggett and wife, who are the appellants, that on the 17th of January, 1861, the firm of Ludlam & Leggett made a general assignment to James H. Graham for the benefit of creditors, and the fact appears to be so, although not found by the referee or noticed on the trial in any form. Graham is not a party to the suit, and, so far as we know, makes no claim against the plaintiff; and it is quite clear that any judgment we may pronounce in this case will not affect any legal rights he may have or shall hereafter choose to assert. It is enough, now, that he is not a party to this suit. No objection was made in the answer or on the trial that he was not made a party, by any one, and it is not for the fraudulent debtor and his wife, who have no interest whatever in the fund, to undertake to ‘ guard any rights the assignee may possibly have. If he has any, he alone must assert it. Besides, under some circumstances an action might be maintained by the creditor in his own name to set aside the fraudulent conveyance, even though it should be conceded that the statute of 1858, chapter 314, vested the cause of action in the general assignee alone. If the assignee were in complicity with the fraudulent parties, or refused on request to be plaintiff, then the creditor might, as plaintiff, assert the right. (Bate v. Graham, 11 N. Y., 237.) And although the assignee was not made a party, that would be an objection which, if not raised by demurrer or answer, would under the Code be waived. (Code, § 148.) It is, therefore, obvious *555 that if the objection, that under the statute the assignee was vested with the cause of action, had been distinctly presented either on the pleadings or on the trial, it would not necessarily have been insuperable, but might have been overcome by suitable proof in anwer to it on the part of the plaintiff. Not having been taken at the trial, we are now bound to assume that it could have been so answered by proof, and we ought, therefore, on well settled principles, to disregard the objection here. The judgment should be affirmed. All concur; Lott, Ch. C., not sitting. Judgment affirmed.