though upon another ground, is the commencement of this action, correct. Judgment affirmed. Opinion by Davis, P. J.; Daniels and Brady, JJ., concur. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Louis Smadbeck, applt., V. George H. Sisson et al., respts. Decided Jan. 25, 1884. An employer is entitled to at least the whole of the day upon which services were completed to pay for their performance, in the absence of any agreement as to when the services should be paid for; an action therefore brought on the day of the completion of the services is prematurely brought. The moving papers upon which an attachment was issued showed that the claim sued for was for the value of professional services rendered by plaintiff at defendants' request, for which defendants had agreed to pay their reasonable value, which value was stated, and that such services were performed between September 1st, 1882, down to the commencement of this action. No demand upon defendant or notice of completion of services was alleged. Held, That no breach of contract or cause of action when suit was brought was shown, and the attachment was properly vacated. Appeal from order vacating an attachment. The attachment was based on defendants' non-residency, and the affidavit upon which it was obtained alleged merely that defendants were indebted to plaintiff for work done, for which defendants. agreed to pay what such services. were reasonably worth; that the services were worth $20,000, and were performed during a period from September 1st, 1882, down to and that defendants lived, one in California and the other in Indiana. P. J. Joachimsen, for applt. Stern & Myers, for respts. Held, By the moving affidavit it appears that no instant of time intervened between the completion of the services and the commencement of suit. Defendants had at least the day on which services were completed to pay for them, and yet the moving affidavit shows that the suit was brought the very day the services were completed. There is no statement of any notification that services were completed or demand of payment. There was no breach of contract by defendants shown at the time suit was brought. The attachment was properly vacated. Order affirmed, with costs. Opinion by Brady, J.; Daniels, J., concurs. to accomplish an ulterior purpose, relieves the other party from such condition. Appeal from a judgment dismissing plaintiff's complaint upon a policy of insurance for a loss by fire. The policy contained a condition that in case of a disagreement as to damages each party Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur. PLEADING. TERM. FIRST DEPT. The Davenport Glucose Mfg. Co., respt., v. Isaac W. Taussig et al., applts. Decided Jan. 25, 1884. should select an arbitrator, and N. Y. SUPREME COURT. GENERAL the two should establish the loss, and upon a failure to agree that they should appoint a third, and that two out of the three should settle the amount. Each party did appoint one. There was proof tending to show that defendant. did not appoint its appraiser in good faith, and that the appraiser was not intended to appraise but to refuse so as to force a settlement. That he and the company refused to appoint another man to make up the board until after the property had been removed and cleared up. Patrick Keady, for applt. S. M. & D. E. Meeker and Albert G. Mc Donald, for respt. Held, That the Court erred in dismissing plaintiff's complaint. If the first appointment was not in good faith and was designed to accomplish an ulterior purpose and not an appraisement according to the spirit of the contract plaintiff was relieved from the condition and could sue in the ordinary way and have his damages assessed by a jury. And it would be no answer that the company subsequently offered to refer to the arbitrator to be mutually appointed. It was for the jury to say from the evidence whether the condition was broken. In an action to recover goods sold to defendants on the ground that the sale of such goods was induced by defendants' fraudulently concealing the fact that they were insolvent at the time of such sale, and fraudulently intending never to pay for such goods, but to fail and discontinue business, allegations in the complaint of the amount of defendants' liabilities and of their assets at the time of the sale, and of fraudulent representations as to their solvency made to other persons than plaintiffs will not be stricken out as being statements of evidence and not of facts constituting plaintiff's claim. The fact that it might subject defendants to a criminal prosecution to answer certain allegations in a complaint is no reason for striking them out for, by § 523, Code Civ. Pro., the verification of defendants' answer may be omitted as to such allegations. Appeal from order denying motion to strike out certain parts of the complaint. This was an action to recover possession of personal property sold to defendants. The complaint alleged that such sale was induced by the fraudulent concealment by defendants that they were insolvent at the time, and about to fail and make a general assignment, with the fraudu lent intent of procuring plaintiff's | the fraudulent intent, and without goods without paying for them. which its case might be insufficient. The complaint then went on to state the amount of defendants' liabilities and of their assets at the time of such sale, and that they had made fraudulent representations to other sellers by which sales were accomplished. This portion of the complaint defendants moved to strike out on the ground that it was irrelevant, redundant and frivolous, as being a statement of evidence and not of facts constituting plaintiff's claim, and on the ground that defendants would be privileged from testifying as to them under § 837 of the Code of Civil Procedure, and should not be obliged to answer them. Henry Schmitt, for applt. Aaron Pennington Whitehead, for respts. Held, That the allegation as to the indebtedness of defendants at the time of the sale should not be stricken out; that it was an essential fact bearing upon the allegation of insolvency, its fraudulent concealment and the design in making the purchase. That the allegation of fraudulent representations made to others should not be stricken out, for the Courts have held that proofs of similar representations to those alleged by plaintiff may be given in evidence for the purpose of establishing the general fraudulent design, 18 N. Y., 588; 24 N. Y., 139; 28 N. Y., 486; 4 Abb., N. S., 431, and that these representations were facts upon which plaintiff relied to establish the existence of Vol. 18-No. 18. That while it is true that a statement of evidence only and not of facts constituting the claim should be stricken out, this does not apply to an action in which all the facts to be stated and the evidence of them are synonymous. That the objection to the allegations involving the fraud set out in the complaint cannot be entertained upon the proposition that answering them would subject defendants to a criminal prosecution, for the reason that, by § 523 of the Code, the verification of the answer might be omitted as to these allegations. Order affirmed. Opinion by Brady, J.; Daniels, J., concurs. CREDITORS' BILL. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The Roger Wheel Co., respt., v. James E. Fielding et al., applts. Decided Dec. 21, 1883. An action in the nature of a creditor's bill, based upon an execution outstanding at the commencement of the action, was brought to set aside certain transfers by the judgment debtors as fraudulent; and thus to enforce the lien of plaintiff's judgment. Held, That the return of the execution unsatisfied pending the action was not a bar to plaintiff's right to the relief sought. A conveyance made for a nominal consideration, the grantor at the time being insolvent, warrants the conclusion that it is fraudulent and void as to creditors. To constitute a valid general assignment for 137; 65 N. Y., 73; 56 How., 46. the benefit of creditors, the duly acknowl- | Seld., 213; 47 N. Y., 410; 2 R. S., edged assent of the assignee in writing to the assignment is necessary. Several fraudulent transfers may be reached and adjudged void in a single action. Appeal from judgment recovered at the trial at Special Term in plaintiff's favor. Held further, That the assignee's not having assented in writing to the assignment constituted a fatal defect to the instrument. His assent, duly acknowledged, should have appeared. Chap. 446, Laws of 1877, § 2. That the action properly includ Action to set aside a general assignment, and certain conveyances, made by the judgment debtors of plaintiff. Plaintiff recovered judged the various conveyances and ment and issued execution which was outstanding when this action. was commenced, but was returned during its pendency. This was urged as a reason against plaintiff's recovery among others. the assignment of the debtors, and was a single cause of action though it sought to set aside and have adjudged void these various conveyances, &c. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. Joseph A. Shoudy, for applts. Wilson M. Powell, for respt. Held, That the return of the execution during the pendency of the LETTERS OF ADMINISTRAaction will not be allowed to defeat TION. TERM. FIRST DEPT. In re application of Daniel W. Schoonmaker for letters of administration. plaintiff's action, though it is one N. Y. SUPREME COURT. GENERAL brought to make the property transferred subject to the lien of his judgment, and to that end to remove obstructions to the enforcement thereof. The case must be determined upon the facts appearing at the commencement of the action. It would be sacrificing substance to form to hold differently. 8 Daly, 518; 27 N. Y., 244; 54 N. Y., 125; 63 N. Y., 252. Held further, That the conveyances of the land were properly set aside and adjudged void, it appearing that they were made for a nominal consideration, and that the grantors were insolvent at the time. The concurrence of these two facts warranted the conclusion that the deeds were void as to the then creditors of the grantors. 5 Decided Jan. 25, 1884. The granting of letters of administration to a creditor of an intestate dying within this State, on the application of such creditor therefor, is discretionary with the surrogate when it is made to appear in opposition that the intestate was not a resident of this State, and that, at the time of the application, there was no personal property belonging to the decedent within the State; for the surrogate is not required to issue letters of administration when they must, for all practical purposes, prove to be entirely ineffectual, and, in such a case, it is a proper exercise of the surrogate's discretion to deny the application. Appeal from decree of the surrogate of the County of New York denying application for letters of could have been of no possible administration. The appellant applied to the surrogate of New York County for letters of administration on the estate of John O. Evans, deceased, as a creditor of said Evans, alleging in his petition, upon information and belief, that said Evans died intestate in the City of New York, of which place he was a resident, and leaving personal property within the State of New York. The application was opposed by the widow of the said Evans, who proved by her own affidavit and that of a brother of the deceased that Evans was a resident of the City of Washington, and was only temporarily in New York at the time of his death; that she had been appointed administrator of his estate by the Probate Court of the District of Columbia; that all the assets of the estate were in her possession, and that there was no personal property belonging to said estate in the State of New York at the time of appellant's application for letters. Sidney F. Shelburne, for applt. Fisher A. Baker, for respt. Held, That the direct denial by the intestate's widow and brother that the intestate was a resident of New York overcame the general statement to that effect made upon information and belief in the appellant's petition, and deprived the surrogate of the right to proceed upon the mere circumstance that the deceased died within New York County. That, if letters of administration had been issued to appellant, they service in the administration of the estate of the intestate, for, as the personal property had been removed from this County at the time the application for them was made, there was clearly no subject matter remaining upon which they could operate. That the surrogate has by no provision of law been required to issue le ters of administration when it is made. evident that they must for all practical purposes prove to be entirely ineffectual. That in such a case the granting of letters is discretionary with the surrogate, and, under the circumstances of the present case, it was a proper exercise of his discretion to refuse the application. 83 N. Y., 348, 355. Decree affirmed. Opinion by Daniels, J., Brady, J., concurs. CORPORATIONS. PLEAD ING. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Caroline Bengstein, respt., v. The Thingvalla S. Co., applt. Decided Dec., 1883. Where the complaint avers that defendant is a foreign corporation incorporated under the laws of the Kingdom of Denmark, and the defendant answers and denies on information and belief that it is a foreign corporation as is alleged in the complaint, no issue is made requiring plaintiff to prove the corporate existence of the defendant, as 1776 of the Code requires an affirmative denial of the fact that the defendant is a corporation. |