Beardsley Scythe Co. v. . Foster

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 563 The referee was right in holding that upon the facts alleged the defendant was entitled to judgment. The plaintiff was not in a position to affirm and enforce a contract which was not made for his benefit, and to which he was neither party nor privy. It does not appear that he succeeded in any way to the rights of Osborn, and he cannot assert the claims of the latter to redress for the wrongs he imputes to the defendant. He does not demand a judgment declaring the invalidity of the transfer from Osborn to Foster, nor does he allege a state of facts entitling him to that relief. His remedy at law is not exhausted, and his execution is unreturned. The complaint cannot be sustained on the footing of a creditor's bill; and, assuming all the allegations to be true, no cause of action results in favor of the plaintiff. He is not relieved by the alleged insolvency of the debtor from the necessity of complying with the condition of the statute, if he would impeach the transfer as fraudulent. (Crippin v. Hudson,13 N.Y., 135; Dunleavy v. Tallmadge, 32 id., 461.) A reversal is claimed on the further ground that the costs awarded at Special Term are embraced in the record of judgment on affirmance at the General Term. This was clearly improper; but the correction should be made on motion in the court below, after the record is remitted. The judgment should be affirmed, with costs.