Clark v. Wise

New York Supreme Court

Clark v. Wise

57 Barb. 416, 39 How. Pr. 97, 1870 N.Y. App. Div. LEXIS 72

CourtNew York Supreme Court

DecidedApril 5, 1870

StatusPublished

Cited by1 cases

This text of 57 Barb. 416 (Clark v. Wise) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Wise, 57 Barb. 416, 39 How. Pr. 97, 1870 N.Y. App. Div. LEXIS 72 (N.Y. Super. Ct. 1870).

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Opinions

Mullin, J.

In deciding cases submitted under section 372 of the Code, the court is to draw from the facts stated, such conclusions as a jury would be warranted in drawing, if the case was on trial before them.

Cases may arise in which a sale by" an insolvent debtor of all his property, upon credit, may not be fraudulent. But, as a general proposition, such a sale, to a purchaser [418]*418cognizant of the vendor’s insolvency, is fraudulent, as the necessary effect o.f it is to hinder and delay creditors.

If a failing debtor may sell on a credit of one, two or three years, why not on a credit of four, six or eight years ? Who is to say that one term of credit is honest and fair, and the other fraudulent ? Who shall draw the line between sales on credit that do, and such as do not, hinder and delay- creditors ? If any term of credit is allowed, the parties must in every case go before a court and jury, in order to have its validity determined. Aside altogether from authority, the public interest is promoted by declaring all such sales fraudulent.

There seems to be.a conflict of opinion in the Supreme Court on the question. But I think the weight of authority in that court is against the validity of such sales.

It would seem that the Court of Appeals have decided the very question, in Mott v. Shapely, cited by the plaintiff’s counsel. If that case holds, as it is said by counsel that it does, it is decisive of the question.

The cases in the 31st and 34th N. T. Beports merely hold that the question of fraud, in such cases, is one of fact for the jury, and not of law for the court. ¡Neither holds that if ti^e jury, on the evidence, had found the sale fraudulent, the finding would have been disturbed by the court.

The plaintiff should have judgment declaring the sale fraudulent, appointing a receiver, and for payment of the judgment from the proceeds of the goods.

Doolittle, J., concurred.

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Mullin, J.

In deciding cases submitted under section 372 of the Code, the court is to draw from the facts stated, such conclusions as a jury would be warranted in drawing, if the case was on trial before them.

Cases may arise in which a sale by" an insolvent debtor of all his property, upon credit, may not be fraudulent. But, as a general proposition, such a sale, to a purchaser [418]*418cognizant of the vendor’s insolvency, is fraudulent, as the necessary effect o.f it is to hinder and delay creditors.

If a failing debtor may sell on a credit of one, two or three years, why not on a credit of four, six or eight years ? Who is to say that one term of credit is honest and fair, and the other fraudulent ? Who shall draw the line between sales on credit that do, and such as do not, hinder and delay- creditors ? If any term of credit is allowed, the parties must in every case go before a court and jury, in order to have its validity determined. Aside altogether from authority, the public interest is promoted by declaring all such sales fraudulent.

There seems to be.a conflict of opinion in the Supreme Court on the question. But I think the weight of authority in that court is against the validity of such sales.

It would seem that the Court of Appeals have decided the very question, in Mott v. Shapely, cited by the plaintiff’s counsel. If that case holds, as it is said by counsel that it does, it is decisive of the question.

The cases in the 31st and 34th N. T. Beports merely hold that the question of fraud, in such cases, is one of fact for the jury, and not of law for the court. ¡Neither holds that if ti^e jury, on the evidence, had found the sale fraudulent, the finding would have been disturbed by the court.

The plaintiff should have judgment declaring the sale fraudulent, appointing a receiver, and for payment of the judgment from the proceeds of the goods.

Doolittle, J., concurred.

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Bluebook (online)

57 Barb. 416, 39 How. Pr. 97, 1870 N.Y. App. Div. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-wise-nysupct-1870.

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