Schollars v. Coghlan

Appellate Terms of the Supreme Court of New York

Schollars v. Coghlan

54 Misc. 612, 104 N.Y.S. 742

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1907

StatusPublished

Cited by1 cases

This text of 54 Misc. 612 (Schollars v. Coghlan) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schollars v. Coghlan, 54 Misc. 612, 104 N.Y.S. 742 (N.Y. Ct. App. 1907).

Pincite

Opinion

Gildersleeve, J.

The trial justice gave judgment in favor of the plaintiff, without weighing the defendant’s testimony, and upon the theory that the defendant could hot avail himself of a defense in the Municipal Court, that a transfer of goods, evidenced by a bill of sale, from the husband of the plaintiff to her, was made without consideration. and in fraud of the husband’s creditors. In his opinion he states that, “ while the circumstances of such transfer are by no means free from suspicion, if I were to render a verdict for the defendant, the defendant’s principals would accomplish as much as and more than they could gain in a judgment-creditor’s action'; and thus a court of inferior common-law jurisdiction, would be exercising a power which courts of equity of unlimited jurisdiction should only assume.” In this position the learned trial justice was in error. So long as the defendant asked for no affirmative relief, no equitable powers of the court were- invoked. As a defense, it has frequently been held that a court of common law powers may try the question of fraud when the title to personal property is attacked upon that ground, and that a District Court has jurisdiction in such a case. Malkemesius v. Pauly, 17 Misc. Rep. 371—373; Pelgram v. Ehrenzeweig, 51 id. 32. This was so held by this court in a case substantially similar to the case at bar. Milella v. Simpson, 47 Misc. Rep. 690.

Fitzgerald and Goff, TJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Gildersleeve, J.

The trial justice gave judgment in favor of the plaintiff, without weighing the defendant’s testimony, and upon the theory that the defendant could hot avail himself of a defense in the Municipal Court, that a transfer of goods, evidenced by a bill of sale, from the husband of the plaintiff to her, was made without consideration. and in fraud of the husband’s creditors. In his opinion he states that, “ while the circumstances of such transfer are by no means free from suspicion, if I were to render a verdict for the defendant, the defendant’s principals would accomplish as much as and more than they could gain in a judgment-creditor’s action'; and thus a court of inferior common-law jurisdiction, would be exercising a power which courts of equity of unlimited jurisdiction should only assume.” In this position the learned trial justice was in error. So long as the defendant asked for no affirmative relief, no equitable powers of the court were- invoked. As a defense, it has frequently been held that a court of common law powers may try the question of fraud when the title to personal property is attacked upon that ground, and that a District Court has jurisdiction in such a case. Malkemesius v. Pauly, 17 Misc. Rep. 371—373; Pelgram v. Ehrenzeweig, 51 id. 32. This was so held by this court in a case substantially similar to the case at bar. Milella v. Simpson, 47 Misc. Rep. 690.

Fitzgerald and Goff, TJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

54 Misc. 612, 104 N.Y.S. 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schollars-v-coghlan-nyappterm-1907.

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