Waverly National Bank v. Halsey

By the Court, Ingraham, P. J. The justice, upon the trial, found that the assignors, before and at the time of the assignment, had a large amount of money, which was not delivered to the assignee, or mentioned in the inventory, which they intended to and did fraudulently conceal from their creditors and assignee; that this money was the result of collections made in contemplation of the assignment, and its possession was concealed by false entries in the books. He also found that the assignors, within a few days of the assignment, fraudulently bought large amounts of merchandise which they did not intend to pay for, and which was immediately sold on credit, and the debt owing therefor was transferred to the assignee; and that clerks were permitted to charge themselves with moneys which they were allowed to retain, either for their own account or for the benefit of the assignors. The justice held that notwithstanding these acts, the assignment was not fraudulent, and rendered j udgment for the defendants. « I suppose it cannot be denied that if the assignors [263] assigned property which was not delivered to the assignee, but was suffered, with the consent of the assignee, to remain in the possession of the assignors, the assignment would be fraudulent and void. With the finding of such concealment of money by the assignors, both from creditors and assignee, for their own benefit, it is clear that part of the assigned property was retained by the assignors, and has not been delivered to the assignee. In Wilson v. Forsyth, (24 Barb. 105,121,) Gould, J., says: “ Leaving the assignor in possession of personal property tends to show that the transfer was intended as a cover. It is this intention which makes the instrument void, and not the subsequent act.” In Griswolds. Sheldon, (4 N. Y. Rep. 580, 588,) Bronson, Oh. J., says : “ Such a transaction (leaving property in the hands of the debtor after mortgage or sale) the law always has and I trust always will pronounce a fraud upon creditors, and the judge should have so ruled, at the circuit.” And in reference to the rule that such question of fraud should have been left to the jury, the court held that evidence to repel the fraudulent intent was necessary, and in the absence of such proof it was the duty of the court to1 set asidé the verdict sustaining the assignment, as erroneous. The purchase of goods with a fraudulent intent, and the transfer of the proceeds of such goods to the assignee, has been held, in Kennedy v. Thorp, (3 Abb. N. S. 131,) to indicate a fraudulent intent sufficient to vacate the assignment. In Work v. Elis, (50 Barb. 512,) Clerke, J., held, “ if the assignors are actuated by a fraudulent intent, in making the assignment, it is void, whatever may have been the intent of the other parties.” In Cuyler v. MeCartney, (40 N. Y. Rep. 221, 226,) Woodruff, J., while holding that admissions made by the assignor, after assignment, are not admissible to prove the fraud, says: “ If the intent was fraudulent, the assignees, however free from fraud them [264] selves, are not bona fide purchasers, but are affected by the fraudulent intent of the assignor. In the cases of Wilson v. Forsyth, (24 Barb. 195,) and American Exchange Bank v. Webb, (15 How. Pr. 103,) and Miller v. Halsey, (4 Abb. Pr. N. S. 28,) it is stated that the mere non-delivery of all the assigned property is not of itself sufficient to set aside the assignment; but some of those cases hold that such evidence is not proper to be considered in ascertaining the assignor’s intent in making the assignment. [First Department, General Term, June 6, 1870. The facts in this case are, that the debtors retained a large amount of money from the assignee, for their own use ; that they bought, immediately before the making of the assignment, merchandise which they did not intend to pay for, but which they sold on credit, and assigned the debt owing for the price thereof to their assignee; and that moneys were allowed to be retained by clerks fraudulently, either for their own use or for the benefit of the assignors. These facts, unexplained by the debtors, are amply sufficient to warrant a finding that the assignors were actuated by a fraudulent intent in making the assignment, and in the absence of any proof explaining the presumption of fraud from such acts, it was the duty of the court to have so found. In Ball v. Loomis, (29 N. Y. Rep. 412,) the want of change of possession is said to be “ conclusive evidence of fraud, unless rebutted by affirmative evidence of good faith, and the absence of an intent to defraud.” The finding in this case is against the weight of the evidence, and a new trial should be ordered. Judgment reversed, and a new trial ordered; costs to abide the event. Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]