Montague v. . Hotel Gotham Co.

Chase, J. The Hotel Gotham Company was dispossessed from the hotel occupied by it as a tenant on May 9, 1908, and thereafter had no interest therein. On the *444 same day the Fifty-fifth Street Company took possession of the furniture and equipment of said hotel pursuant to the terms of a chattel mortgage owned by it thereon. It subsequently appeared that said furniture and equipment taken under said chattel mortgage was not worth as much as the claim against the hotel company for which it was held as collateral. It further appeared that the Fifty-fifth Street Company as a creditor of the hotel company received on May 9,1908, from said hotel company $2,173.37 and certain personal property, consisting principally of perishable hotel supplies, and on or about May 31, 1908, $7,762.07, which items of cash constituted the only remaining assets of said hotel company. The hotel company at that time was indebted to other creditors in an amount exceeding $30,000, which it was and is wholly unable to pay. These facts, which are not disputed or explained, except as hereinafter stated, require us to hold as a matter of law that such payments were made with intent of giving a preference to the Fifty-fifth Street Company over other creditors of the hotel company. The officers of the Fifty-fifth Street Company undoubtedly intended at that time to reorganize or have reorganized the hotel company and-provide in such reorganization for the payment of its remaining creditors in full. Such intent did not, however, prevent the facts found from constituting as a matter of law an intent by the hotel company to give the Fifty-fifth Street Company a preference. The fact that the hotel company was not reorganized and the further fact that the creditors of the hotel company were never paid simply emphasize the preference that was given at the time when the Fifty-fifth Street Company received all of the remaining assets of the hotel company. The findings of the trial court sustain the conclusion that none of the other payments made by the hotel company to the Fifty-fifth Street Company, mentioned in the *445 complaint, was made with intent of giving a preference to the Fifty-fifth Street Company over other creditors of the hotel company. It is also found in substance that said personal property, consisting principally of perishable hotel supplies, could not have been sold so as to produce any net sum for the creditors of the hotel company, and that the transfer thereof to the Fifty-fifth Street Company for a credit by it of the book value thereof to the hotel company was not fraudulent or preferential under the circumstances narrated. We cannot say as a matter of law that such finding was an error. The judgment in favor of the defendants should be reversed and judgment directed upon the findings in favor of the plaintiff and against the defendant Fifty-fifth Street Company for $9,935.44, with interest on $2,173.37 thereof from May 9, 1908, and on $7,702.07 thereof from May 31, 1908, without costs in any court to either party. Cullen, Oh. J., Gray, Willard Bartlett, Cuddebacic and Hogan, JJ., concur; Miller, J., not sitting. Judgment accordingly.