Hotop v. Neidig

17 Abb. Pr. 332

• Court: New York Supreme Court
• Decided: March 15, 1864
• Status: Published

Opinion

Sutherland,' J.

The only question in this case is presented by the exception to the finding of fact, that the said Bliss did not omit to execute and attach the said schedule to the assignment with any view or intent of reserving the opportunity of giving preference to any creditors he might desire to prefer, or to any creditor or person except the said Gault; and to the further finding of fact, that there was no intent, in fact, to defraud in the making and delivery of said assignment, nor in the delay in the execution and delivery to the assignee of said schedule B; on the contrary, the whole transaction was in actual and entire good faith.

These findings of fact were abundantly authorized by the evidence, and it cannot be said that the assignment was fraudulent in law, irrespective of the question of fraud in fact as to the plaintiffs, or any other creditor.

The complaint was not properly framed to set aside the assignment on any other ground or principle than fraud, or for the purpose of having it adjudicated that the debts mentioned in schedule B were not entitled to a preference, because schedule B was not annexed to the assignment when the assignment was executed and delivered, and not until a day or two afterwards.

The complaint was framed on the theory that the assignment was fraudulent and void as to the plaintiff, a judgment and execution creditor; and whether it was so or not, appears to have been the only question litigated before the referee.

I think the judgment should he affirmed, with costs.

Leonard and Clerke, JJ., concurred.