Devoe v. Brandt

58 Barb. 493, 1871 N.Y. App. Div. LEXIS 17

• Court: New York Supreme Court
• Decided: February 7, 1871
• Status: Published

Opinion

By the Court, Ingraham, P. J.

The motion for a dismissal of the complaint was denied. No grounds are stated in the case. The defendant now claims that it should have been granted, because there was no proof of demand, before action. That objection should have been stated on making the motion. It might have been obviated by proof at the time. (Newton v. Harris, 6 N. Y. 345. Binsse v. Wood, 37 id. 526.) There was not sufficient evidence of collusion between Brandt and Samuels to warrant submitting that question to the jury. The defendant’s counsel asked the judge to charge the jury that there being no proof of collusion between these defendants, the jury could not infer such collusion in reference to the judgment offered by the plaintiff in evidence. That action was by Brandt against Samuels, for $3345, commenced in March, 1865. Judgment was entered in November, 1866, and execution issued the same day. Mere delay in entering judgment or issuing execution can never by itself be considered sufficient evidence to charge the party as in collusion with debtors. It is not at all unusual for creditors to wait, before issuing execution, until they find their debtor in possession of property. Such delay, unaccompanied by other evidence, is not sufficient to warrant any finding of collusion, so as to defeat a purchase by the creditor at a sheriff’s sale under the execution. I think the justice should have instructed the jury as requested, on this point.

[First Department General Term, at New York, February 7, 1871.

Judgment reversed, and new trial ordered; costs to abide the event.

Ingraham, P. J., and Cardozo, Justice.]