Bridgham v. Kelly

82 N.Y.S. 554

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1903
• Status: Published

Opinion

CHESTER, J.

The plaintiffs’ judgments were not recovered until several weeks after the levy under the Griswold judgment, and after the application of the property covered by the chattel mortgage to the payment of that judgment. It may be conceded, therefore, that the finding that the confession of judgment was,,void, as not containing a sufficient statement of facts, under the law, to support it, and that the finding that the confession of judgment and chattel mortgage were fraudulent and void as against the plaintiffs, have sufficient support in the testimony, yet the judgment appealed from cannot be sustained. There is no proof that James F. Kelly ever received any of the goods covered by the chattel mortgage, except to turn them over in payment of a valid judgment against his son. He has not been benefited in any way by the transaction. Nor have the plaintiffs been injured by any act of his in relation thereto. If the fraudulent confession of judgment and chattel mortgage had not been given and accepted, or if he had insisted that he owned the goods under the fraudulent mortgage, the levy under the Griswold judgment would nevertheless, in either event, have been a good one, and effective to reach these goods for application to the payment of that judgment. How, then, could the plaintiffs be injured, when these goods were lawfully applied to the payment of a valid judgment against the son weeks before the plaintiffs had a judgment? By the joint act of the appellant and his son in applying these goods to the satisfaction of the Griswold execution and judgment, they were lawfully put beyond the reach of any execution which the plaintiffs thereafter became entitled to issue.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concur.