Isaacs v. Gorham

1 Hilt. 479

• Court: New York Court of Common Pleas
• Decided: December 15, 1857
• Status: Published

Opinion

Daly, J.

There was nothing to show a removal or disposition of property to defraud creditors. The fund in the hands of James Gf. King & Sons belonged to the defendant’s wife. The defendant’s wife signed several receipts for subsequently occurring payments out of this fund, and by an order of the defendant attached to each receipt, the payments were made payable, to the plaintiff, and the receipts, with the orders of the defendant underwritten, were delivered to the plaintiff. The defendant, in violation of this agreement and understanding — that the payments might be made to the plaintiff — drew them from the bankers as they fell due. But the money thus drawn was not his property. This creditor had no claim upon it. It could not have been applied to the payment of bis debt. If a judgment had been recovered, and he was brought before a judge upon proceedings supplementary to execution, the judge could not order James G. King & Sons to make these payments to the plaintiff until his debt was satisfied, nor, if the defendant had the money in possession, could the judge direct the defendant to pay it to the plaintiff. It was the separate property of the wife, and the fact that the defendant drew it from the bankers, authorized to pay it on her receipt, could not, in any aspect, be regarded as a fraudulent removal or disposition of his property.

The withdrawing of the money, which was designed by the defendant to be a security for the repayment of the thousand cMiars loaned to the defendant by the plaintiff, would not show that the debt was fraudulently contracted. The giving of receipts for accruing payments signed by the wife, with the defendant’s order, making them payable to the plaintiff, was no agreement on the part of the wife that these payments might be made to the plaintiff. If the plaintiff saw fit to loan money upon such a security, it was his own folly. He should have had something which neither the wife nor husband could countermand. The wife simply acknowledged that she had received the payments from the bankers through the defendant. She gave a receipt to the defendant which would authorize him to receive the-payments from James Gr. King & Sons, but which did not authorize him to transfer them, by way of security or otherwise, to the plaintiff. Upon the production of that receipt the bankers were authorized to pay tbe amount acknowledged by the receipt to the defendant, but not to bis .order. The bankers might probably have been protected if they had paid the money to the plaintiff upon the production of the receipt, but they would not have been if notified by the wife not to pay it to bim. The husband had no authority to hind the wife by the agreement he made with the plaimiff, and the plaintiff cannot allege that he was defrauded by relying upon an agreement which constituted no security at all, which the wife could repudiate at any moment, and which it appears she did, as the defendant swears that the money was drawn by bim at her request, for the purpose of obtaining the-means of subsistence for her and himself.

Order appealed from affirmed.