Hoover v. Greenbaum

62 Barb. 188, 1872 N.Y. App. Div. LEXIS 85

• Court: New York Supreme Court
• Decided: April 1, 1872
• Status: Published

Opinion

By the Court,

Ingraham, P. J.

The evidence in this case cannot be considered sufficient to charge upon the defendants knowledge of the insolvency of the debtor. There is no proof to show any knowledge on their part, of the insolvency, beyond the non-payment of the claim against him, and the collection of the judgment. If such facts are held to be sufficient to charge a creditor with the knowledge required by the bankrupt act, it would be dangerous for any creditor to collect from his debtors the claims he had against them by legal proceedings. ■ The creditor should have the knowledge that the debtor was acting in view of insolvency, and with intent to give him a preference. In this case the creditor had no such knowledge ; and the facts which it is claimed the attorney for the creditor obtained in the prosecution of the suit, were not sufficient to charge on the defendant such knowledge. So far as appears in the case, the defendant had no knowledge that the action .was brought by McLennan & Arch-bald in Nebraska, and there was no communication by them to the defendants. If they erred in the course they adopted, the defendants are not chargeable with their acts, without notice.

[First Department, General Term, at New York, April 1, 1872.

Ingram ham, P. J., and Cardozo, Justice.]

The judgment should be reversed, and a new trial ordered; costs to abide the event.