Page images
PDF
EPUB

vised Statutes, was pleaded as a circumstance to be considered in defence. Plaintiffs' assignors had connection with any other eviexcluded this debt from their list dence which tended to show colluof assets in their assignment in sion with the debtors to enable bankruptcy, and plaintiffs relied them to conceal the indebtedness upon taking the case out of the or in any other wise to defraud Statute of Limitations by showing their creditors. that this was done with the inten- Judgment reversed and new trial tion of reserving this debt for their ordered, however, for failure of own benefit and defrauding their the court to submit to the jury the creditors, and that defendants question, upon which there was were parties to such fraud. The evidence, whether such a new pro. trial court in submitting the ques- mise had not been made by defendtion of frand to the jury charged ants as would take the case out that, even if defendants knew or of the statute. had presumptive knowledge of the Opinion by Davis, P.J.; Brady, omission of their debt from the and Daniels, JJ., concur. list of assets of the assignors, that would not raise a presumption of

FRAUDULENT ASSIGNfraud as to them, but that plain

MENTS. tiffs must establish a clear case of fraud against defendants and N. Y. SUPREME Court. GENERAL show that they colluded with the

TERM. FIRST DEPT. assignors for the purpose of de- James Talcott, applt., v. Walter frauding the creditors before they P. Hess, impld., respt. would be liable in this action. To

Decided Dec. 21, 1883. this charge plaintiffs excepted, and

The intentional inclusion of a fictitious debt the jury rendered a verdict in

by a general assignor for the benefit of favor of defendants.

creditors in his schedule of debts, filed in Marsh, Wilson & Wallis, for pursuance of the act regulating general applts.

assignments, vitiates the assignment. Melville H. Regensburger, for The schedules when filed may be considered

a portion of the assignment for the purpose respts.

of ascertaining whether or not a fraudulent Held, No error; that if defendants intent existed. knew, or had presumptive knowl. No fraudulent intent on the part of the gen

eral assignee is necessary to make out a case edge of the mere fact that plain

of fraudulent assignment. tiffs' assignors omitted their debt It is improper to ask a witness his opinion as from their schedule, that would to whether a general assignment made by not be sufficient, unless there was another person was made in good faith. some connection or collusion on

Appeal from judgment recovered the part of defendants with them on trial at Special Term. to the disadvantage and injury of Action by a judgment debtor the creditors.

after execution returned unsatisBut the knowledge of defend tied to set aside a general assignants of this omission would be a ment for the benefit of creditors.

On the trial it appeared that the purpose of ascertaining the exisassignor in her schedule of debts tence of any fraudulent intention. included a debt to one Graham 85 N. Y., 404. No fraud on the secured by a mortgage on certain part of the assignee need be shown property on Hall avenue, East as an element of plaintiff's case. New York, which mortgage had 57 Barb., 249. It was improper to in fact been paid, and must have allow the husband of the assignor been known to have been paid, to answer the question as to although the same was not dis- whether the assignment was made charged of record, and such assig. in good faith. nor also, in her schedule of assets, Judgment reversed, new trial included the Hall avenue prop. ordered, costs to abide event. erty, which was specified as being Opinion by Daniels, J.; Davis, subject to a mortgage for an P.J., and Brady, J., concur. amount stated.

On the trial, against objection and exception by plaintiff, assig.

SURETYSHIP. nor's husband was allowed to answer the qnestion whether or not, N.Y. SUPREME COURT. GENERAL in his opinion, the assignment was

TERM FIRST DEPT. made by his wife in good faith.

Thomas S. Grimwood, respt., v. D. S. Riddle, for applt.

William H. Wilson et al., applts. L. Birdseye, for respt.

Held, That the defendant Haz- Decided Dec. 21, 1883. ard, assignor, must have known in view of the size of her estate and

Where a surety signs a bond upon condition

that it is not to be delivered until another the other circumstances in this

person becomes a party to it, a delivery in case that the claim of $1,000 stated violation of that condition will not be ef. to be owing Graham, secured as fective against him. was stated by a mortgage on her If a surety, on executing an undertaking re

quired by the Code to be given in an action property on Hall avenue, was not

attaches to it the above mentioned condia subsisting debt.

tion, the filing of such undertaking in vioIt had been paid, and the infer- lation of said condition will be a defense ence is that she knew it, and she

to an action against the surety on the un

dertaking, provided the party to the action offers no explanation of its inclu

otber than the one giving the undertaking sion in the schedule as a debt.

was deprived of no right by the filing of Its inclusion was a frand upon the such undertaking: and if such underunpreferred creditors and was de. taking is inoperative by reason of its fail.

ure to comply in form with the require. signed to reduce the amount which

ments of the statute under which it is given, would go to them of the estate the waiver of such defect by the party enunder the assignment and renders titled to take advantage of it will not have it void. 2 Sandf., 594; 36 Barb.,

the effect of binding the surety. 291; 44 Barb., 192; 40 N. Y., 383.

It seems, however, that if the filing of the The schedules will be considered a

undertaking in violation of the condition

deprived the other party of a right, the portion of the assignment for the surety would be liable.

Vol. 18.-No. 14.

Appeal from judgment entered | dition will not be effective against upon decision of the court at cir- him. 32 N. Y., 445 ; 60 id., 150 ; cuit without a jury.

52 id., 570-4. This action was brought upon That since the undertaking dean undertaking given in an action prives plaintiff of no right, and to stay proceedings pending an did not delay the collection of the appeal to the General Term of this judgment, the failure to comply court, executed by the appellant with the conditions imposed by dein that action and the defendant fendant, subscribing it as a surety, Wilson, as surety.

The defense

was a defense. was that such undertaking was That the party in whose favor signed by Wilson on condition the undertaking was made could that some other responsible party not, by waiving the requirements should also sign it, and that that of the statute, fix a liability upon condition was not fulfilled, but the surety greater than that which that the undertaking was filed a compliance with the statute and without a second surety having with the conditions upon which he been obtained, without the knowl- signed it would impose. edge or consent of Wilson.

The

That if the undertaking had undertaking was made at a time created a stay the surety would when the old Code was in opera- probably have been precluded by tion, which required, $ 335, that it that circumstance from denying should be signed by two sureties, his liability upon it. and consequently the undertak

Judgment reversed and new ing sued upon did not operate as a trial ordered. stay. 63 How., 84. The respond

Opinions by Davis, P. J., and ent, however, accepted the under- Daniels, J.; Brady, J., concurs. taking and took no steps to enforce the judgment pending the appeal. The trial court refused GUARDIAN. BOND. to find the facts proved to sup

Kings port the defense, apparently for N. Y. SUPREME COURT. the reason that the execution and

SPECIAL TERM. filing of the undertaking were

William A. McLaughlin et al., such acts as precluded defendant

v. Mary Crawford et al. from proving the alleged defense, and rendered judgment for plain- The bond of a guardian ad litem appointed in tiff.

a partition suit must run to the County

Treasurer and not to the People.
Sidney S. Harris, for applts.
Wilbur F. Scott, for respt.

Motion for approval of bond of Held, That where a surety sigus guardian ad litem. a bond upon condition that it is Action for partition commenced not to be delivered until another in Feb., 1883. In June, 1883, one person becomes a party to it, the F. was appointed guardian ad delivery in violation of that con- litem of the infant defendants on

a

his giving a bond according to ings previous to a sale, but is a law in the penal sum of $700," substitute for 2 R. S., 328, § 68 ; and execnted a bond to The Peo. that $ 475 does not apply to the ple of the State of New York, bond in question, as that section which was approved and filed. only prescribes a form of bond to

Defendant's counsel having ob- be given by a guardian on receivjected that said bond was not in ing money or property of the indue form ; that it should have been fant as prescribed in § 474; that in the name and official title the former provision as to the form of the Treasurer of Kings Co., of bond has been repealed and under $ 1585, Code Civ. Pro., or $1536 of the Code substituted in to the infants under $ 475 of the its place, which section does not Code, and that the infant defend prescribe to whom the bond shall ants are not properly before the be made, and that as there is now court, this motion was made to no statutory direction or rule of settle such objection.

court in force prescribing to whom Defendants' counsel argues that the bond shall be made, the $ 4, tit. 3, chap. 5, part 3 of the practice of the court must be Revised Statutes, providing that followed in this respect, which guardians ad litem in partition is (although based on prosuits should execute a bond to the vision of the R. S. recently rePeople, was repealed by Chap. pealed), that it must still be made 245, Laws of 1880; that $ 1536, to the People of the state. Citing Code Civ. Pro., provides that “the 5 Waits Pr. 68, 69 ; 1 id., 489 ; 2 security to be given by the guar. Crary's Pr., 113, 580; 3 Barb. Ch. dian ad litem for an infant party Pr., 709; 1 Abb. Forms, 62. in an action for partition must be

Henry Grasse, for plff. a bond executed by him and one

Theo. H. Friend, guardian in or more sureties;" that $ 1585, Code

person. Civ. Pro., provides that “a secu

Henry Day, for deft. rity taken under any provision of this article, except as otherwise

Barnard, J.-Sec. 1585 gives specially prescribed therein must the form of bonds by guardians be taken in the name and official ad litem in actions for partition in title of the County Treasurer of

cases except where otherwise spethe county in which the property cially prescribed in Article second, sold is situated ;” that ss 1536 and Code of Civ. Pro., in reference to 1585 are both embraced in Art. 2, partition. Tit. 1 of Chap. 14 of the Code, and

As no other form is provided hence no bond according to law except to the County Treasurer, has been given and the appoint that is the true form of bond. ment of the guardian is not com

The guardian will file a plete.

bond and an order can be made The guardian argues that $ 1585 nunc pro lunc. does not apply to any proceed

new

MARRIED WOMEN. plaintiff before maturity and that
PLEADING.

he is the owner and holder thereof;

that said note was doly protested N. Y. SUPREME COURT. GENERAL

and notice given to the endorsers. TERM. SECOND DEPT.

The K.s demurred to the comMerritt, respt., v. Kinney et al., plaint on the sole ground that it applts.

did not state facts sufficient to

constitute a cause of action. The Decided Dec., 1883.

demurrer

was

stricken out as Money loaned to a married woman enlarges frivolous and judgment ordered her separate estate, and she is liable there

for plaintiff. for.

E. C. Ripley, for applts. A complaint set up a loan to a married

G. F. Wellman, for respt. woman ; her promise to repay ; her promissory note given therefor charging her sepa- Held, No error; that the derate estate ; the endorsements thereon ; murrer was plainly frivolous. ownership by plaintiff, protest and notice. Married women are no longer outHeld, That a demurrer on the ground that the complaint did not state facts sufficient

laws in this State.

They incur to constitute a cause of action was frivo. liability on many contracts and lous.

among them those made for the Appeal from judgment in favor benefit of their separate estate,

which this was. of plaintiff.

The money went Action on a promissory note.

to enlarge the estate of a married The complaint stated that defend- woman and so it was beneficial ant F. M. K. is a married woman;

thereto. A married woman has that defendant M. loaned to her been held liable on her contract in October, 1881, $500, which she for the purchase of groceries purpromised to repay with interest

chased by her for consumption in and for which she gave her prom- ber family, including her husband.

The claim that issory note, of which the following 85 N. Y., 516. is a copy :

several causes of action are set

forth in the complaint has no “City of Brooklyn, Oct. 24, 1881.

foundation. “ $500. Fifty days after date

Judgment affirmed, with costs. for value received I promise to pay A. B. Moore or bearer, at the Nas nard, P.J., and Pratt, J., concur.

Opinion by Dykman, J.; Barsau Bank, New York City, the sum of five hundred dollars with use, which said sum I hereby make

WILLS. REDEMPTION. and intend a charge and lien on my

N. Y. COURT OF APPEALS. separate estate; said indebtedness being for the benefit thereof.

Weed et al., applts., v. Root, FREDERICA M. KINNEY." impl’d, respt. It also alleged that defendant

Decided Dec. 11, 1883. J. P. K. endorsed the same to M.,

A devisee who claims a mere legal estate in who endorsed and delivered it to

real property of a testator, where there is

« PreviousContinue »