Hirsch v. Hutchison

McAdam, J. The plaintiff’s affidavit, after stating the amount of his demand over and above all counter-claims, proves that the defendants, who were partners on the 25th day of September, 1882, were both jointly and individually insolvent, and that being so insolvent and indebted to the plaintiff and others, on joint demands, the defendant Roany made a fraudulent transfer of his interest in the firm to his copartner and codefendant Hutchison. The defendant Hutchison moves on the original papers to vacate the attachment, and thereby admits for the purposes of this motion that the charges made are true. The sole question, therefore, is whether the sale conceded to be fraudulent justifies the attachment. On first impression it would seem that a transfer from the one joint debtor to the other could not prejudice the plaintiff in collecting his debt; but this impression is removed by considering the legal effect of such a transfer, which makes [367] the one partner the sole owner of the firm’s, property, and gives his individual creditors a preference over the joint creditors of the firm in the marshaling of the assets (Story's Eq. Jur., secs. 646, 675 ; 2 Spence’s Eq. Jur., 213; and see 4 Barb., 571; 41 id., 307; 52 N. Y., 146). The defendant also claims that as the action is brought to recover a balance due “ for goods sold and delivered,” it is not such an action as is contemplated by section 635 of the Code, which permits an attachment “ where the action is to recover a sum of money only, as damages for * * * breach of contract.” But this position is untenable. The action is for goods sold and delivered. It is founded on contract. The agreed price or the reasonable value being the measure of damages, and the breach consists in the defendant’s failure to perform their part of it, to wit, by paying the price or value. The words employed in the present Code are even more comprehensive than those employed by section 227 of the old Code. When the codifiers superseded this section (227) by the new section (635) they did not intend to limit or restrict, but rather to enlarge the right of attachment, so as to have it comprehend not only attachments in actions “ arising on contract for the recovery of money only,” but every action “for the recovery of damages for breach of (any) contract.” This is the more reasonable construction of the legislative intent. The additional affidavit offered by the plaintiff on the argument has not been considered, because I regard section 683 of the Code of Civil Procedure as merely declaratory of the (then) existing rule of practice in regard to new papers, as reaffirmed by the court of appeals in Yates agt. North (44 N. Y., 271), and hold that the case of Ives agt. Holden (14 Hun, 402) must be limited in its application to the practice as declared in Yates agt. North (supra). Motion to vacate attachment denied, with ten dollars costs, and with leave to renew on affidavits.