Sweeney v. Cohen

23 A.D. 94, 48 N.Y.S. 569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1897
• Status: Published

Opinions

Hatch, J.:

This action was brought to set aside a deed, made by the defendants Harris Cohen and Elizabeth, his wife, to Jacob Cohen, upon the ground that the same was in fraud of the creditors of Harris Cohen. Prior to November 4, 1889, one Morris Levy was the owner of a plot of ground at Bockaway. He had theretofore contracted with the firm of Sweeney Brothers to erect thereon three houses, one of which, being the property affected by the present suit, it was contemplated would be conveyed to the defendant Harris Cohen. Upon completion of the houses, Levy failed to pay the whole amount of the. contract price, and one Baldwin, a carpenter, who did work under the employment of Sweeney Brothers, filed a mechanic’s lien upon the houses for $650, the amount of his claim. On November fourth, Peter B. Sweeney, at the solicitation of Harris Cohen, released Levy from all liability upon his contract, procured Baldwin to cancel his lien, and in substitution therefor Harris Cohen gave to Sweeney his promissory notes, amounting in the aggregate, with those that had been previously given by Cohen and which remained unpaid, to the sum of $3,722.70. Those notes were not paid at maturity, and judgments were obtained thereon which form the basis of the present action.

The premises were conveyed by Levy to Harris Cohen on the 15th day of November, 1889, and the deed was recorded on the twenty-ninth. On December fifth, in the same year, Harris Cohen and wife conveyed the premises to Jacob Cohen.. The deed was recorded December tenth. On the ..9th day of December, 1889, suit was commenced by the service of a summons and complaint upon Harris Cohen to recover the sum of $1,500, claimed to be due upon a promissory note held by one Israel. ■ On the next day Cohen served an offer to allow judgment to be taken against him for the full amount of the claim, with interest and costs, and judgment for the amount of $1,520.09 was entered the next day and execution issued thereon. At this time, and for a long period of time prior thereto, Harris Cohen had carried on a prosperous clothing business at the corner-- of White and Baxter- streets, in the city of New York. He had a large stock of goods, worth several thousands of dollars, and no one seems to have regarded him as in failing circumstances. The execution upon the Israel judgment was immediately levied upon this stock of goods, but not soon enough to forestall a writ of replevin sued out by one Levy, as claimed, at the instance, of Harris Cohen, under which seizure of a large amount of the property was made, and there was only realized upon the execution sale of the property left the sum of $534.34. This, in brief, is the net result of Harris Cohen’s operations for the months of November and December. He has ever since continued to reside in the house conveyed to Jacob, with his family, and a few days after the sale of his stock, the store was opened and the ^business conducted in his wife’s name, and he has managed the business with the same clerks as before. Bouse, a witness for the plaintiffs, testified that the goods which Cohen had “ there before, came back there after a while,” and Cohen did not deny the statement upon the stand. The learned counsel for the respondents very frankly admits in his brief that Harris Cohen was undoubtedly “ engaged in an attempt to defeat his creditors generally,” a statement which accords with my own view. This, however, as is claimed, would not be sufficient to defeat the sale of this property to Jacob Cohen if he paid full value for the same and bought without knowledge or notice of the fraudulent intent of his grantor.

• We come, therefore, to a consideration of what the case really is • as disclosed by the testimony given .upon the trial, and may then fairly examine the disposition made of the case by the court, and consider its rulings in the examination of the testimony, and in rejecting evidence offered by the plaintiffs. The complaint avers that the transfer of the property was made to Jacob without his paying therefor a valuable consideration, and in pursuance of a scheme by Harris Cohen to hinder, delay and defraud his creditors, and that-Jacob participated therein and had full knowledge and notice of it. Callman Bouse testified that in August, 1889,.it was mentioned to him, in the presence of Jacob Cohen, that Harris intended to fail; that he was sent for and met Jacob and Harris Cohen and Morris Levy; that Harris said that he had got to fail, and that the worst thing was to get the goods out of the store without the neighbors noticing it; that Rouse advised that the goods should be sent out to spongers and carried to Jacob’s store, who was also in the clothing business. The next day Rouse was called to Jacob’s store and showed some goods by Jacob, which had come from the Harris Cohen store. Other methods of removing the goods were also adopted, and witness spolce with Jacob about it. . Finally the three men above mentioned visited a firm of lawyers, and it'was there agreed that, in consideration of $600 which the witness was to hold for payment to the lawyers, as a guaranty of good faith on Harris Cohen’s part, the Israel judgment was to be obtained by a friendly lawyer, already retained and who had brought that action, and when that was done a writ of replevin was to be sued out and most of the goods taken by that process before the execution upon the judgment was levied. In addition, supplementary proceedings were to be instituted through another attorney. The witness also testified that Harris Cohen related the transaction by which he had induced Sweeney to take his notes for the real property and release the lien thereon, so that he pould make good title to the property; that this conversation took place in November, in the presence of Morris Levy and Jacob Cohen ; that the latter laughed about it, and that all regarded it as a very smart business transaction.

The oral statements made by Rouse were denied by Jacob and Harris Cohen. Morris Levy was not called as a witness. The testimony of Jacob Cohen tended to establish that he knew nothing of any of the transactions testified to by Rouse; that on July 5, 1889, he loaned Harris Cohen $2,000 in money for which he took his note, due in five months after date, and that on the twenty-fifth of the same month he loaned him $1,500, for which he took his note, due four months after date; that at the time when he purchased the premises he gave Harris a certified check for $650, surrendered up the two notes, and that this constituted the consideration for the property. The notes and check were produced upon the trial and read in evidence. The transaction respecting the giving of the notes was purposely kept a secret between Jacob and Harris Cohen. It consisted, according to the'statement of Jacob, in Harris applying to him for a loan of the respective sums, in his going to his safe wjiere he kept his rent moneys and handing him out the a-mount. Jacob was a man of large means, although he could not read or write. His daughter was his bookkeeper, and he states that, as he then contemplated a matrimonial alliance with the daughter of' Harris, to which his children were not kindly disposed, he did not wish them to know of these loans, and so no entry was made of them. As Jacob could not read or write, and Harris could .only sign his name, and no one else knew of -the transaction, the production of. the notes. by the two may be regarded as partaking of the nature of a miracle. Jacob also claimed to have leased the house to the. wife of Harris Cohen, she to.pay him as rent the interest upon the money invested and the taxes. This was an oral arrangement, and seems, never to have been carried out, as all the money Jacob has received as rent does not exceed $115. And, according ?o his statement, supported in some instances by checks which are produced, he has paid in taxes and to prevent the foreclosure of a mortgage a . much larger sum . than he has received.

Harris Cohen supports Jacob’s testimony in respect of the notes and the bonafides of the transaction. But it is quite evident that his course in the matter and the transactions in which he had been engaged made for him a veiy tortuous passage in giving testimony. His statements are in many respects obscure, uncertain, incomplete, hesitating, contradictory, and, as a whole, quite unsatisfactory. He admits, however, that he went to the lawyers ’with Rouse, although he claims that Rouse compelled him to go, and that he could not help himself. He swears that Rouse got $600, which he yet owes him. He then swears that he had to give Rouse $600, but for what pur- ■ pose lie did not know. He did not know whether he owed the lawyers anything or not. After avoiding a direct answer to several questions as to whether he directed Rouse to pay the lawyers the sum of $300, he positively denied it. When presented with a written order authorizing Rouse to pay the lawyers $300 for “ services .and outlays in the matter of Mr. Cohen,” signed by him, he could mot tell whether it was his signature or not, and declined to answer one way or the other. When the paper itself was offered in evidence, the court excluded it as immaterial:

We need not further pursue in detail the evidence ; the foregoing is its substance upon this branch of the case. • These witnesses were all subject to the ban of interest — Rouse for his animosity toward Jacob Cohen, Jacob Cohen because of his interest in the property and his relation to Harris. By a former marriage of the latter’s sister he became his brother-in-law. By his second marriage with his daughter he became his son-in-law. Upon the evidence it was undoubtedly competent for the court to direct the judgment which it did, as it is not without evidence for its support, and we may not disturb it for that reason. But the learned court based its ruling in dismissing the complaint, in part at least, upon the assumed fact that the testimony of Bouse was uncorroborated. This assumption was only true as respects oral statements. In matter of circumstance, corroboration of the testimony of Bouse was not lacking. The details of the transaction by which Harris Cohen ^procured his property to be seized by friendly creditors was carried out as detailéd by Bouse and in harmony with the plan which Bouse said was made. This was corroboration of a substantial character. In addition to this, the statement of Harris Cohen and Levy, as to the means used to induce Sweeney to release Levy and clear up the real property, was insubstantial accord with the plaintiffs’ and Baldwin’s testimony upon that subject, and it does not appear that Bouse had any relation with either or that he heard of the transaction other than from Harris Cohen and Levy. In addition to this, existed the' undisputed fact that Harris Cohen had a large establishment and a .large stock of goods, employing fifteen or more clerks. His business was prosperous, to all outward appearances. Jacob Cohen supposed him to be a wealthy man. In the face of these circumstances he suddenly fails; his property is disposed of so that but a small sum is realized to apply upon any claim against him ; his real property go efe to his relative, and the means used by which this result is accomplished was detailed by Bouse as the scheme made prior thereto. It may not, therefore, be asserted that there was no corroboration of the testimony of Bouse. It may be that this would not be sufficient to call for a reversal of the judgment, taken in connection with the fact that the court could have disbelieved and rejected the testimony of Bouse entirely, and it is not entirely clear that it did not do so. I do not determine the question. Bather have I jjointed it out to show that, in excluding the order made by Harris Cohen to Bouse to pay his lawyers, an error fatal to the judgment was committed. The- scheme of Harris. Cohen to fail, assuming it to have existed, fofi the purpose of' cheating his creditors, required, of' necessity, the. disposition-of' his whole property, both real and personal. This was essential to the accomplishment of his purpose. Both real and personal property were disposed of as practically cotemporaneous acts. Any evidence, therefore, which bore upon and tended to show that a scheme was entered into became competent and material testimony. Rouse testified to the existence of a conspiracy and the court held that his testimony and the facts appearing at the close of the plaintiffs’ case called upon the defendants to give- proof. . This condition, of the case authorized the reception in evidence of any act which the parties charged with entering into the conspiracy had done in furtherance of it or in connection with it. When, therefore, the written evidence of Harris Oohen’s connection with the conspiracy was made to appear in connection with the testimony, of Rouse, it became admissible for the purpose of showing such connection and characterizing it, and also for .the purpose of corroborating Rouse. As we have seen, Rouse testified that he held the money to pay the lawyers employed by Cohen. This was denied by Harris Cohen, and the fact that the latter subsequently directed Rouse to pay over money to the lawyers was not only evidence, but practically conclusive evidence, that Rouse not only held -the money but that he held it for the purpose for which he said he did. It was also admissible against Jacob Cohen. Harris Cohen had been called for the purpose of showing the banco fieles of the sale to Jacob. The case in this respect rested upon the testimony of Harris, as well as that of Jacob Cohen. Anything, therefore, which went to the destruction of Harris Cohén’s testimony was admissible upon the issue of credibility thus raised. If the court found that Harris Cohen did, in fact, deliver the money to Rouse, as required by the lawyer's which he employed, it might well have found that there existed the scheme, participated in by Jacob, to aid and assist Harris to defraud his creditors. Such testimony tended to the destruction of Harris, Cohen’s testimony and furnished strong corroborating testimony of the truthfulness of Rouse, and had the. court received it there might have been found sufficient strength therein, in connection . with the other testimony, from which to conclude that the sale to Jacob was fraudulent to his knowledge.

• For these reasons, expressed at much greater length than I had intended, the judgment should be reversed and a new trial granted, with costs to abide the final award of costs.

All concurred, except Goodrich P. J., and Bradley, J., dissenting.