Savage v. . Murphy

34 N.Y. 508

• Court: New York Court of Appeals
• Decided: January 5, 1866
• Status: Published

Opinion

Smith, J.

The case, upon the facts found, is briefly this: The judgment debtor, being engaged in an extensive business in the city of New York, on credit, in which he was considerably indebted, stripped himself of the title to all his property, by transfer, to his wife and children, for a merely nominal pecuniary consideration, without any visible change of possession, and with the intent to contract and continue a future indebtedness in his business, on the credit of his apparent ownership of the property transferred, and to avoid payment of his debts. After the transfers, he continued in business, making new purchases on credit, and using part of the avails of each successive purchase to pay the indebtedness then existing, during about ten months, at the end of which time he failed, owing debts, thus contracted, amounting to more than $3,450 — among which were the debts for which judgments were recovered, as alleged in the complaint. Upon these facts, it is clear that the transfers thus made were fraudulent and void as against subsequent creditors. The fraud consisted in the design to obtain a credit thereafter, by means of his continued possession and apparent ownership of the property which he thus placed beyond the reach of those who should give him such future credit; and, consequently, the conclusion of fraud is not repelled by the circumstance that the debts owing by him at the time of the transfers were paid with the proceeds of credit subsequently acquired by the means above stated. The indebtedness then existing was merely transferred, not paid, and the fraud is as palpable as it would be if the-debts now unpaid were owing to the same creditors who held them at the time of the transfers.

As the evidence in the case fully supports each of the findings above referred to, they are conclusive. The judgment must, therefore, be affirmed, unless there is merit in the exception taken by the defendants’ counsel to- the admission of the testimony of the witness Budlong as to declarations made by the grantor, respecting the conveyances subsequently to -their execution. The testimony was offered for the purpose of contradicting Murphy, the grantor, who had been previously examined, and whose attention had been called to this statement to Budlong. It was properly admitted for that purpose.

The appellant’s connsel argues, however, that, although admissible to contradict, it was improperly treated by the court as evidence in chief, and as tending to show a fraudulent intent; This claim is based upon an expression used in the opinion of the judge who tried the cause. The opinion is very far from showing clearly that the judge so treated the testimony; but, if it did show it, the point would be unavailing. The only question raised by the exception is as to the admissibility of the testimony; and there being other testimony in the case sufficient to uphold the conclusions of the trial judge on all points, no error is shown.

The judgment should be affirmed.

Judgment affirmed