Wheeler v. Brady

9 N.Y. Sup. Ct. 347

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Daniels, J.:

The order to show cause, under which the last motion was made to discharge the defendant from arrest, was neither made nor served until long after the expiration of twenty days from the time when the judgment in the action was entered. It consequently was not made within the time prescribed by the Code of Procedure.

* The appellant claimed that the order allowing the motion to be renewed, extended the time, within which, by the provision referred to, it was required to be made. But as the order was made before that time had expired, and contained nothing whatever, indicating it to be the purpose of the court to extend that time, this position cannot be sustained. The second motion was very properly denied on that ground, even if the additional affidavits, if they had been presented in time, made out a case requiring the discharge of the order of arrest. The papers before the court on the first motion, showed that the defendant was actually insolvent; and when he had reason to expect that some of his creditors’ demands would soon be in judgment against him, he conveyed away the only property which he had at that time, that could even be supposed to be worth something over the incumbrances upon it, to his daughter and his attorney. The time and manner of the conveyances, and the persons to whom they were made, together with the defendant’s insolvency, were sufficient to j ustify the conclusion deduced by the Special Term, that the intent prompting them on the part of the grantor, was to place what little property he had, out of the reach of any judgments which might be recovered against him. That intent, when it clearly exists, is not ordinarily avowed by the debtor; on the contrary, his endeavor is to obscure and conceal the evidences of its existence; and, when it is discovered, the most that can be expected, is, that it may fairly and reasonably be inferred from the circumstances attending the disposition of the debtor’s property. The conclusion that it did exist, was sufficiently warranted by the affidavits presented in this case.

The orders should be affirmed, with ten dollars costs in each appeal, besides disbursements.

Davis, P. J., concurred.

Ordered accordingly.

§183.