Skinner v. Oettinger

14 Abb. Pr. 109

Opinion

By the Court.

*—Sutherland, J.

This action was not commenced to set aside the assignment as fraudulent, but to recover a judgment for an alleged debt. The action was not commenced, nor does it proceed upon the theory, that the plaintiffs had a lien upon the assigned property, or any better right to it, originally, and before the attachment was levied, than any other simple contract-creditor.

The only question of law there is in the case is, whether a fraudulent disposition of property, by way or under color of an assignment for the benefit of creditors, is or can be a fraudulent disposition of property within the Code, so as to authorize the issuing of an attachment under the Code.

The language of the Code is general and broad enough to include any and every fraudulent disposition of property.

The attachment issues, not because the plaintiff has a lien on the specific property alleged to have been fraudulently disposed of, but to acquire a lien as a provisional security for the payment of a judgment to.be recovered.

Assuming the assigned property, seized under the attachment, to be, at the time of such seizure, in the possession of the assignees, the sheriff takes it at his peril, and he need not take it without being indemnified by the plaintiff. If the plaintiff indemnifies the sheriff, he indemnifies him at the peril and risk of being able to show the assignment to be fraudulent and void, in an action brought against the sheriff for the taking.

The plaintiff takes and enforces the provisional remedy at his peril. I repeat, the question is not as to the plaintiff’s right to remove or set aside a fraudulent obstruction to the enforcement of a judgment and execution, but his right to a provisional statutory security for the payment of his debt, when he shall have obtained a judgment.

Upon sufficient evidence, then, that the assignment by the defendants was fraudulent, the attachment in this case might properly and regularly have been issued on that ground alone.

Upon the question of fact, on the motion to vacate the attachment, whether the defendants, by the assignment or otherwise, had made a fraudulent disposition of their property, there were evidence and circumstances on both sides to show the fraud, and to contradict the charge of fraud.

This evidence and these circumstances were submitted to the judge who heard the motion, and his decision on this question of fact must be and ought to be held conclusive.

The order appealed from should be affirmed, with $10 costs.

Clerke and Barnard, JJ., concurred.

Present, Sutherland, Clerke, and Barnard, JJ.