Avard v. Carpenter

Smith, J.: This action is against the sheriff of Madison county to recover damages for the conversion of certain personal property sold by the [259] defendant upon execution against one Alfred Avard, the plaintiff’s father. The plaintiff claims title to the property under a bill of sale, claimed to have been given by the said Alfred Avard to the plaintiff prior to the levying of the attachment and the sale by defendant, which constituted the conversion of which the plaintiff complains. The defendant contended upon the trial that the sale to the plaintiff was for the purpose of defrauding the creditors of Alfred Avard, and this contention raised the sole issue upon which the case was tried. The defendant, in support of his contention, offered in evidence the testimony of Alfred Avard, given in supplementary proceedings before one D. C. Burke, as referee, upon the 7th day of November, 1899. This was objected to on the part of the plaintiff and excluded by the learned trial court, to which exception was duly taken.. This exception is relied upon by the appellant as ground for the reversal of this judgment. His argument is that this transfer was in pursuance of a fraudulent scheme upon the part of the father and son to place the property beyond the reach of creditors, and that the declarations of the father, though after the sale, while still in possession of the property, are competent evidence against the son. This position seems to find support in Flannery v. Van Tassel (127 N. Y. 631) and Levy v. Hamilton (68 App. Div. 277). The proposition of law asserted is not questioned in the respondent’s brief, but respondent argues that the declarations were made long after the father parted with both title and possession. In support of his position he cites the case of Lent v. Shear (160 N. Y. 469). The argument is thus reduced to a single question of fact. Were these declarations of the assignor made while in possession of this property ? It appears by the certificate of the referee that the testimony of the assignor was given upon the 7th day of November, 1899. The sale, which defendant claims constituted -a conversion, occurred upon the 11th day of November, 1899. The plaintiff swears: “The property.remained there right along in my ■father’s possession until it was sold.” The deputy sheriff who made the sale swears that the sale was made upon, the farm. Moreover it appears from the testimony of the plaintiff that this property was left with his father by his consent. It would seem, therefore, that, inasmuch as the defense rested upon a conspiracy between the plaintiff and his father to defraud [260] creditors, the declarations of the father, made while in possession of the property, should have been admitted. For error in rejecting this evidence the plaintifE is entitled to a new trial. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.