Jellenik v. May

Barnard, P. J.: The proof of fraud in the assignment by Grunberg to the plaintiff is very light, but it was sufficient to admit the declarations of Grunberg. The assignment was dated the 3d of November, 1884, and acknowledged the 5th of November, 1884, and there is proof tending to show that the assignor continued in the possession of the [388] property manufacturing and managing the stock of goods and material as usual until the 8th of November, 1884, when it was seized by tiie sheriff of New York. The assignee formally locked the door of a work-room in the house, and there is proof tending to show that the key was at once returned to the assignor. Under this state of the proof it was error to exclude the declaration of the assignor. (Adams v. Davidson, 10 N. Y., 309.) "When an assignment is followed by a change of possession the declarations of the assignor are not evidence. (Coyne v. Weaver, 84 N. Y., 392.) The admissibility of the testimony depends upon the assignee being in possession. . In Coyne v. Weaver (84 N. Y.), the answer of the defendant alleged that the assignee was in possession at the time of the levy, and the court held that the assignor’s declarations were inadmissible “ because made after the assignment and delivery of possession under it.” The acts done by the assignor at about the time of the assignment, and the declarations made by him, were evidence, and their rejection was improper. The question of a lack of a change of possession, as the case was left, was one for the jury. The necessity for a jury may be further shown by proof of a fictitious debt or that the assignment was made to defraud creditors by other proof. Judgment reversed and new trial granted, costs to abide event. Dvkman and Cullen, JJ., concurred. Judgment and order denying new trial reversed and new trial granted, costs to abide event.