author:
DykmaN, J.:
      Barraed, P. J.

text:
    WILLIAM T. REYNOLDS and Others, Appellants, v. WILSON S. HORTON, Defendant, CHARLES A. VAN DEUSEN, a Junior Attachment-Creditor, Respondent.

      Attachment — secreting propei'ty— concealment to avoid service.

    The fact that a debtor, who had not paid for goods at the time promised, was absent from his place of business on the day when his creditor chanced to call for payment, the place of business being open and the business being conducted therein in its usual course, in charge of a clerk, who made no apparent effort to conceal his employer’s whereabouts, coupled with the further fact that shortly before the creditor’s call the debtor had drawn out of the bank his entire bank deposit:

      Eeld, not to warrant an attachment on the grounds of secreting property with intent to defraud creditors, and concealment to avoid service of a summons.
    (Barnard, P. J., dissenting.)
    Appeal by tbe plaintiffs, composing tbe firm of Reynolds & Oramer, from an order made by tbe county judge of Columbia county, dated tbe 9tb day of August, 1892, vacating, on the motion of Charles A. Tan Deusen, a junior attachment-creditor, a warrant of attachment granted to tbe plaintiffs on tbe 14th day of June, 1892, against tbe property of tbe defendant, Wilson S. Horton.
    On making tbe order appealed from, the county judge, Hon. J. Rider Cady, delivered tbe following opinion :
    This case has been very earnestly and ingeniously presented by counsel, and I am much indebted to them for the assistance they have afforded me in resolving a somewhat nicely-balanced state of facts.
    Tbe warrant of attachment granted in behalf of tbe plaintiffs was allowed, by me upon an ex parte application, and a substantial question is whether sufficient grounds for my action were presented by tbe moving papers.

      Another question is whether the affidavits upon which the junior attaching creditor, Yan Deusen, obtained his attachment are so much more explicit and full than those of the plaintiffs as to afford him a right to make the motion.
    Answering the last question first I do so in the affirmative, and conclude that the affidavits upon which Yan Deusen’s attachment issued warranted the judge who allowed it in doing so, and _that they are stronger and more satisfactory than those furnished by the plaintiffs to the county judge upon their application. Yan Deusen’s affidavits leave no doubt in my mind of his right to the remedy he asked for. The sole remaining question is whether this much can be properly said of the plaintiffs’ papers. They disclose substantially the following facts, viz.:
    That on the 13th, 17th and 21th days of May, 1892, the plaintiffs sold to the defendant goods, wares and merchandise, amounting in value to the sum of $515.21; that the defendant agreed to pay one-half of the sum of $141.96, which was the value of the goods sold to him on May 12, 1892, in cash on the delivery of said goods, and the other half thereof within thirty days, and that the balance of the goods were sold to him for cash; that the defendant has not paid said sum of $515.21, or any part thereof; that at the time the defendant made the purchase on May twelfth, he stated that he was worth the sum of $800 and that the credit, which was allowed to him by the plaintiffs, was given to him on the strength of such statement as to his financial capacity; that he thereafter in a letter to the plaintiffs stated that he was worth the sum of $800; that on the 13th day of June, 1892, the plaintiffs sent one of their employees to the city of Hudson, where, to quote the language used by George E. Cramer, one of the plaintiffs, in his affidavit upon the application for the attachment, “the defendant resides and is conducting his business, to demand payment of said bill; ” that the plaintiff’s representative did not find the defendant at his store in the city of Hudson, but did find a clerk there, apparently in charge of the business, who stated that the defendant had gone to Albany in the morning, and that from there he was going to Poughkeepsie, where the plaintiffs have their place of business; that during the thirteenth day of June the defendant was seen by Henry C. Brill, a salesman employed by the plaintiffs, in the village of Fishkill, where, as further appears in the affidavit of Nebemiah Boyce, the wife and mother of the defendant reside, and that the said affiant Boyce was, on said thirteenth day of June, informed by William Bostwick, cashier of the Hudson River National Bank in Hudson, that the defendant had had the sum of about $700 on deposit in said bank for about a month prior to June 11, 1892, and that on that day he drew about $700 in cash, being his entire deposit, except a few cents. These are the substantial and important facts disclosed by the affidavits of the plaintiffs. It also appears that Boyce made inquiries in the village of Pishkill, on June thirteenth, concerning the whereabouts of the defendant, but was unable to ascertain them. The warrant of attachment was allowed on June fourteenth. I cannot resist the conclusion upon reflection that these facts, standing alone as I must consider them, do not afford sufficient ground for the issuing of an attachment.
    •They do not disclose, so far as I can discover’, any false statement made by the defendant in obtaining credit from the plaintiffs. He said to them that he was worth the sum of about $800, and it affirmatively appears from the affidavit that at the dates of the sales, and for some time after, he had nearly that sum on deposit in a bank at Hudson. The papers throw no light upon the conduct of the defendant between the date of the last sale made to him by the plaintiffs on May 24,1892, and June 13,1892, when they sent their employee to Hudson, except that it appears that during that time the defendant had made no payment upon account of his purchases from the plaintiffs. When the plaintiffs’ agent reached Hudson, on June thirteenth, he apparently found the defendant’s place of business open and in charge of a clerk. In fact, Mr. Cramer’s affidavit expressly states that the defendant resided and wras conducting his business at Hudson, on the day he made his affidavit, which was sworn to June 13, 1892. The defendant, on June thirteenth, was absent from his place of business, but it does not appear that he had concealed, or was attempting to conceal, himself. His clerk stated that he had gone to Albany, and was going thence to Poughkeepsie, and he was actually seen in the village of Pishkill, not far from the city of Poughkeepsie, on that day. His wife and mother reside at Pishkill and it can scarcely be said that there was anything remarkable or suspicious in his being at that place on that day. The period of liis credit with, the plaintiffs had only recently expired. It is true that he had not made cash payments which he had agreed to make, but it does not appear that the plaintiffs had pressed him for a settlement. It is true that on May eleventh he drew $700, or thereabouts, from the National Hudson River Rank, and had not, up to the date of the application for the attachment, applied any part of it to the payment of the plaintiffs’ claim.
    I think it would be unsafe to establish as a rule that the facts that a debtor is absent from 1ns place of business on the day when his creditor chances to call for payment, the place of business being open, and the business being conducted therein in its usual course, the place being in charge of a clerk, who makes no apparent effort to conceal his employer’s whereabouts, coupled with the further fact that shortly before the creditor’s call the debtor has drawn either the whole or a part of his deposit from a given bank, will warrant the attachment of the debtor’s goods. Attachment is a severe remedy and ought only to be employed in the cases and under the circumstances provided for in the statute. It is frequently difficult for creditors to bring their proofs up to the requisite standard, but that is their misfortune, and does not justify the courts in legislating upon the subject and in departing from the standard established by the statute. I am convinced by all the facts disclosed upon this motien that Horton, the defendant, intended to defraud his creditors, but in disposing of the motion I am limited to the consideration of the bare facts stated in the plaintiffs’ original papers.
    The motion is granted, without costs to either party.

      J. 8. Yam, Oleef, for the appellants.

      Brownell <& Ooch/rane, for the respondent.
   DykmaN, J.:

This is an appeal from an order made by the county judge of Columbia county vacating' an attachment against the property of the defendant Horton.

Our conclusion is that the attachment was improperly granted, and the Order vacating the same was right.

The order should be affirmed, with ten dollars costs and disbursements.

Pkatt, J., concurred.

Barraed, P. J.

(dissenting):

On the 12th of May, 1892, the plaintiffs sold and delivered to the defendant goods of the value of $411.96. On the 18th of May, 1892, they sold in addition goods of the value of twenty-seven dollars and thirty-five cents. On the 17th of May, 1892, they sold to defendant goods of the value of thirty-four dollars. And on the 24th of May, 1892, an additional amount of eleven dollars and ninety cents, in all $515.21.

The defendant at the time of the first purchase stated that he was worth $800 in cash, and he was to pay half on delivery of the goods and the balance in thirty days.

Defendant had a place of business in Hudson, N. Y., and the goods were at once delivered to him upon their purchase. The defendant did not pay the half cash, and upon being written to by plaintiffs replied by letter that he was worth $800. No payment was made, and on the 13th of June, 1892, the plaintiffs sent one Boice to Hudson to collect the bill. He found the clerk in the store who told him that defendant had gone to Albany in the morning, and was going from there to Poughkeepsie where the plaintiffs did business. He did not go there, but the plaintiffs heard that he was in Pishkill, Dutchess county. They sent a clerk there, and the defendant’s wife and mother knew nothing of his whereabouts. The cashier of the bank in Hudson informed Boice that on the 11th of June, 1892, the defendant drew out his balance, within a few cents, which was $700. The defendant had been there a month. The proof was hearsay as to the drawing out the bank deposit, but the evidence falls within the principle l-ecognized in Buell v. Van Camp (119 N. Y., 160). The facts stated show a fraudulent contraction of the debt and concealment by the debtor to avoid service of process.

The order should be reversed, with costs and disbursements.

Order vacating attachment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: BaeNAed, P. J.:

license: Public Domain

text:
    WILBUR H. WESTON, Plaintiff, v. THE CITY OF NEWBURGH, CHARLES J. LAWSON, Mayor, and THE COMMON COUNCIL OF THE CITY OF NEWBURGH, Defendants.

      Election for special tax in city of Newburgh — vote on each object of taxation— mandamus. »

    The charter of the city of Newburgh (Laws of 1865, chap. 541, tit. 5, § SI) provides that if there shall be more than one object for a special tax proposed at any election, the electors must place the word “for” or “against” opposite each object of taxation. The object of a special tax, as proposed to and approved by the electors, was as follows: “For the raising by tax of a sum, not exceeding $50,000, for purchasing the large four-story brick building, known as the Bazzoni Building, located on the south-west corner of Broadway and Grand street. Said building to be remodeled, converted and changed so as to be made suitable for use as a'city hall and station-house combined.”
    It appeared, and was so stated in resolutions of the common council precedent to the élection, that of the $50,000 to be raised $32,000 was to be paid for the purchase of the building and $18,000 for fitting it for municipal purposes.

      EM, that the item of $50,000 as the object of taxation was a single one, and the vote approving it in the form submitted was valid. .

      Eeld, also, that after the approval of such object of taxation by the electors, the owner of the building was entitled to a mandamus to compel the city to complete its purchase, and that no one but suoh owner and the city had any standing in the proceeding for the mandamus.

    Submission of a controversy on an agreed statement of facts.
    The plaintiff demands judgment adjudging and declaring that the special election held in the city of Newburgh on the 7th day of September, 1892, was, in all respects, legal and valid, and in conformity with the provisions of the city charter; that the ballot cast by the majority of the resident taxpayers of said city voting at such election was, in all respects, legal, valid, regular and in conformity with the provisions of the city charter in form and substance; that the defendants be required by writ of mcmdamus to carry out the vote and direction and determination of said taxpayers as expressed at said election, and to purchase the property known as the Bazzoni property and improve the same for the purpose of a city hall and station-house combined; and that the plaintiff have such other and further relief as may be just and equitable as the nature of the case may require,

      And tbe defendants demand judgment adjudging and decreeing tbat said special election was not legal and valid, and that said ballot so voted by tbe majority of said taxpayers did not and does not conform to tbe provisions of said city charter, and is irregular, illegal and invalid in form and substance, and dismissing tbe plaintiff’s claim upon tbe merits.

      Jf. JET. Hirschberg and William D. Dickey, for tbe plaintiff.

      O. L. Waring, for tbe defendants.

      L. S. Sterrit and E. L. Fancher, for certain taxpayers.
   BaeNAed, P. J.:

Tbe submission shows tbat there is a building in 'Newburgh called the Bazzoni Building, which the city wished to purchase for municipal purposes. The plaintiff owned the property, and ashed $32,000-for the same, which the city was willing to give, and passed resolutions to that effect. It was necessary to expend $18,000 as additional thereto to fit the building up so as to meet the municipal necessities. By chapter 541, Laws of 1865, title 5, section 21, it was necessary to submit the question whether the people would authorize the city to raise the money, and to that end the common council passed these resolutions.

The following resolutions were also passed and adopted by the common council at said meeting, August 2, 1892:

“Resolved, That the objects hereinafter named be included in the notice for special election to be held Wednesday, September Ith 1892, and that the following resolutions be adopted:
“Resolved, That the common council hereby estimate the sum necessary to be raised for said purpose not to exceed $50,000; and the objects for which said sum is required are as follows, viz.:
“ For purchasing the large four-story brick building known as the Bazzoni Building, located on tbe south-west corner of Broadway and Grand street, said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station-house combined.
“First. It is necessary to raise a sum not exceeding $32,000 for the purpose of purchasing said four-story brick building, known as the Bazzoni Building, to be used as a city hall and station-house combined.
“ The common council are of the opinion that this building is conveniently situated for the purpose of a city hall, and that the price at which the same can be purchased is a reasonable figure. That it is a matter of economy for the city to be the possessor and owner of a city hall, and also, that this building is substantially built, and só constructed and arranged as to make it easily, possible, to change and alter the same in such a manner as to be suitable for the offices of Mayor, City Clerk, Collector, Health Officer, City Surveyor, Excise Board, Street Superintendent, Marshal, Recorder’s Court and station-house, all combined, including cells for prisoners.
“ Second. That it is necessary to raise a sum not exceeding $18,000 for the purpose of making necessary changes and alterations in and to the brick building known as the Bazzoni Building so as to render the same suitable for the purpose of a city hall hereinbefore mentioned.”
The section of the city charter provided that if there should be more than one object for a special tax proposed at any election the word for ” or against ” must be placed opposite each one of these objects of taxation. The object of the tax as proposed to the elector was as follows:
For the raising by tax of a sum not exceeding $50,000 for purchasing the large four-story brick building known as the Bazzoni Building located on the south-west corner of Broadway and Grand street. Said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station-house combined.”

The item is a single one. No assent would be proper by which the city could raise one sum without the other. If the electors would not buy the building there was no need of the $18,000, and if the building was approved it was useless for the purposes intended without the expenditure of the $18,000. The electors approved the item as it stood, $50,000 for the building and fitting it up. The plaintiff is willing to sell and the city is willing to take. The plaintiff is entitled to a writ of mandamus to compel the peformance of the contract. This form of action is needed to determine the legality •of tbe bonds to be given so as to raise tbe money under tbe power ■granted by the vote. No one has any standing but tbe land owner and the city.

Tbe judgment must be for tbe plaintiff upon tbe submitted case.

Peatt, J., concurred ; Dyisman, J., dissenting.

Judgment for plaintiff on submitted case.


author: BarNard, P. J.: DyxMAN, J.:

text:
    THOMAS O’MALLEY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Rule of a railroad company requiring inspection of brakes by the brakemen — opportunity for inspection necessary — contributory negligence.

    Where a rule of a railroad company, requiring freight hrakemen to examine and know for themselves that brake shafts and attachments which they are required to use are in safe and proper condition, is accessible to a brakeman whose duty it is to examine it, such brakeman is to be charged, in an action brought by him against the company for a personal injury, with knowledge of the rule, although it may not appear that he had seen it.
    Such a rule of a railroad company, requiring an inspection by employees of appliances to be used by them, must, however, receive a reasonable construction and application; if ample time and opportunity are afforded for the examination and inspection required by the rule such examination must be made, and the consequence of a failure to do so must rest upon the delinquent employee, but where no time or opportunity is afforded no negligence because of such failure to examine is to be imputed to the employee.
    Hence, where a freight car, at a way station, was attached to a train only a few moments before the train was to leave the station, although, in fact, a delay of ten or fifteen minutes in starting was caused by the necessity of waiting for another train, it being uncertain, however, how long the delay would continue, and by reason of the liability that the train would start at any moment it would have been dangerous to go under or around the car to inspect it:

      Held, that no opportunity was given the train brakeman to give such attached car the scrutiny required to detect defects in the foot-board and guard of the brake-staff, which were not so open and visible as to be detected by a glance of the eye; that, consequently, the brakeman was not to be held responsible for a failure to inspect the brake attachments, under a rule of the company calling for such inspection, and, therefore, was not, in that respect, guilty of contributory negligence, as matter of law, so as to prevent the submission to the jury of the question as to his right to recover, in an action brought by him against the company to recover the damages resulting from an injury received in operating such defective brake attachments.
    Questions of contributory negligence, in failing to make inspections, are to be determined in the same manner as other questions of the same character arising in any other way.
    Appeal by tbe defendant, tbe New York, Lake Erie and Western Bailroad Company, from a judgment of the Supreme Court, entered in tbe office of the clerk of Orange county on the 25th day of June, 1892, on a verdict in favor of the plaintiff for $6,000, rendered at the Orange Circuit; and from an order denying a motion made by the defendant for a new trial on the minutes of the court in an action for the recovery of damages resulting from a personal injury to the plaintiff on the defendant’s road.

      Lewis JE. Carr, for the appellant.

      John M. Gardner, for the respondent.
   BarNard, P. J.:

The neglect of the defendant was clearly proven. The plaintiff was a brakeman in the employ of the defendant. The defendant was bound to apply safe appliances for the purposes of the employment.

While applying a brake the guard snapped and threw the plaintiff under, the car.- The plaintiff was proven to be free from any neglect on his part. He was using the appliances in the usual way. The proof shows that it was in a weak condition by the absence of a bolt, and the two remaining bolts so loose as to be unsafe. There was no opportunity to examine the brake before the accident on the occasion in question, and a rule to that effect must have a reasonable construction. Besides, there was proof on the trial tending to show that the rule had not been in force as to brakemen who were called upon to apply brakes. It is manifest that it could not be observed by the employee without danger. The brakes must be applied at once when the order is given.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

DyxMAN, J.:

This is an appeal by the defendant from a judgment and order denying a motion for a new trial on the minutes of the court.

The plaintiff was a bralceman in tbe employ of the defendant, and on the morning of the accident went with a local freight train, upon which he was at work, from Newburgh to Turner’s. He remained there with his train about one hour. While there a freight car was attached to the train to be taken back to Central Yalley. It was coupled to the engine, and after that the train stood still, with the plaintiff standing by it for ten or fifteen minutes waiting for another train.

When it started towards Central Yalley‘it consisted of the engine, this car and a caboose, and when it reached there it stopped, the caboose was uncoupled, and the plaintiff went forward and climbed up on the end of this freight car nearest to the engine and gave the engineer the signal for moving back upon the switch. He then went to the rear end of the car where the brake was, to apply it, for the purpose of checking the movement as it was being backed in upon the switch. When he commenced to apply the brake he placed'his right knee on the car and his left foot on the foot-board, and when he applied his strength to the brake the guard snapped and threw him off his balance, and the foot-board broke and he fell to the ground and the wheels of the cars passed over his arm and foot, inflicting the injury for which this action was brought.

The brake staff came up the end of the car through the foot-board, which was located a short distance below the top of the car, and fastened to the roof by a strip of iron; on the foot-board was a ratchet which fitted into the notches of a wheel on the staff, and the foot-board was supported by braces underneath.

There was a crack in the foot-board, and the supporting braces were loose, and the screws had so worn into the wood that they no longer held it firmly, the strap around the staff had an old crack partly through the iron. The principal effort on the part 'of the defendant upon the trial was to convict the plaintiff of contributory negligence in this way.

There was a*rule of the company which required freight brakemen to examine and know for themselves that brake shafts and attachments, and other attachments which they were required to use, were in safe and proper condition, and the insistence was that, the plaintiff failed to fulfill the requirements of that rule, and so contributed to his disaster.

It did not fully appear that the plaintiff had seen the rule, but as it was accessible to him, and it was his duty to examine it, he must be charged with knowledge of its existence.

Yet the rule must receive a reasonable construction and application. If ample time and opportunity is afforded for the examination and inspection required by the rule it must be made, and the consequences of failure to do so must rest upon the delinquent. But where no time or opportunity is afforded, no negligence for failure can reasonably be imputed.

It may often happen that a car standing upon a side track at a way station is attached to a passing train to be drawn to the next or another station, and that such attachment is made in haste with no time for examination, and in such a case it would be unreasonable to hold any trainman responsible for failure to inspect.

Ve think this is such a case. The car was attached but a few moments before the train was to move on for Newburgh. The delay in starting was caused by the necessity of waiting for another train, and it was uncertain how long it would continue. The train might start at any moment, and for that reason it would have been dangerous to go under or around the car to inspect it. The defects were not so open and visible as to be detected by a glance of the eye. Their discovery would have required scrutiny, and for that there was no opportunity.

The question was before the Court of Appeals in the case of La Croy v. Railroad Company (132 N. Y., 570), but that was an extreme case and full opportunity was given to all the trainmen for examination of the train after it was made up and in full operation.

In fact, it was on a side track idle for nearly two hours, and although it was known that the train was soon to make a dangerous descent no effort was made to ascertain whether the brakes which would be subjected to a severe strain were in condition for its endurance.

Questions of contributory negligence in failing to make inspections are to be determined in the same manner as other questions of the same character arising in any other way.

If the facts and circumstances leave the question so plain that a verdict would not be permitted to stand in favor of the plaintiff the complaint is to be dismissed by the trial court.

We do not think this case was sufficiently plain to justify the trial judge in convicting the plaintiff of contributory negligence as a matter of law, and that he was required to submit the question to the jury under proper instructions as he did. The charge was faultless and no error was committed upon the trial.

The judgment and order should be affirmed, with costs.

Pratt, J\, concurred.

Judgment and order denying new trial affirmed, with costs.


author: Pratt, J.:

text:
    KATHARINE C. FERRIS, Respondent, v. MARY C. D. FISHER and Others, Appellants.

      Former adjudication — when competent evidence — objection first raised on appeal.

    It is not necessary that the record of a former judgment should contain the testimony on which it proceeded in order to make it admissible in evidence. Nor is it any objection to a former judgment as evidence that it was taken on default, or that it was not pleaded.
    Where a judgment-roll had been put in evidence, and it was assumed by the court and counsel at the trial that the judgment contained therein had been duly entered:

      Held, that an objection to the admission of the record, on the ground that the judgment had never been entered, raised for the first time on appeal, was too late.
    Appeal by the defendants, Mary C. D. Fisher and others, from a judgment, entered in the office of the clerk of the county of Westchester on the 20th day of October, 1892, on the decision of the court on a trial at the Westchester Circuit by the court without a jury.

      Martin J. Keogh, for the appellants.

      Wilson Brown, Jr., for the respondent.
   Pratt, J.:

This action is brought for the partition of certain lands formerly held by Eliza H. Fisher. The complaint sets up a will and codicil made by said Eliza, and avers they were executed by her solely by reason of undue influence and while mentally incompent to make a will. These allegations are denied by the answer.

Upon the trial the plaintiffs were allowed to put in evidence the record of a former action in partition between the same parties, but concerning other property, in which it was determined that Mrs. Fisher, at the time she made the codicil now in question, was of unsound mind, and that the codicil was, therefore, void.

The testimony taken upon the first trial is not shown, .and it appears from the record of that action that when the cause was called for trial the defendants sought a postponement, which was refused by the court; whereupon an inquest was taken, the defendants not opposing further.

The findings were in the form usual in partition, reciting the determinations of law and fact, establishing the rights of the parties and directing a sale of the property.

The appellants now claim that admitting the record was error, that a judgment by default is not evidence in a subsequent action, that the testimony upon which it was rendered should have been shown, and that there is no proof that final judgment was entered upon the findings.

That the testimony is not shown upon which the first action was determined is clearly no objection to the admission of the record. The reason why a record of a former judgment is admitted as evidence, is that parties may not be burdened with proving the fact a second time. If the testimony upon which a judgment went must again be produced, a principal benefit of the rule, of res adgutMcata, would be lost. Nor is it any objection that the judgment was taken upon default. The inference to be drawn from a failure to prove a defense is that no defense exists.

The plaintiff who brings a suit may reasonably expect to settle the facts in that action. If a defendant, by refusing to answer, could deprive the plaintiff of the benefits of his action it would be apt to work injustice.

To the suggestion now made that a final judgment is not shown to have been rendered in the first action, it may be answered that the objection is late. When the record was offered it seems to have been assumed by counsel and the court that judgment had been entered. The case recites that plaintiffs put in evidence judgment-roll” in action No. 1; that the ‘‘judgment-roll” was marked as an exhibit. Then follows the admission, by counsel, that “ the judgment in action No. 1 was taken upon default, as appears from the judgment-roll itself.” And at defendant’s request the court finds that “the judgment” in action No. 1 was taken by default.

If we are to give language its ordinary significance we must consider that the entry of judgment was tacitly if not expressly conceded. Now we are asked to assume on appeal that no judgment has been entered.

If defendants intended to require more proof that the final judgment had been entered, the attention of counsel and court should have been called to the supposed defect in evidence. If it be that the evidence is deficient in that respect, we think the defect was waived.

The appellants also object that the former judgment not being pleaded could not be admitted in evidence and cites authorities that where a former adjudication is relied on as a “bar” it must be pleaded or it is not admissible. Had there been a previous determination between the parties of their rights in the property now in suit, that would be a “ defense ” or “ bar ” to this action. Like other defenses that would require to be pleaded. Like other defenses, if not pleaded, it could not, if objected to, be proved.

In the present case defendants have not pleaded that any previous determination has been had of the rights of the parties in this property. On the contrary, it is admitted that the previous litigation concerned other property. The record was not offered in “ bar ” of this suit, but in its support. To plead evidence is contrary to the present rules. The plaintiff pleaded that the codicil in question was executed by the testator when of unsound mind, and was, therefore, void; and proved that allegation by producing the record wherein it had been so adjudged in a previous action between the parties. When received in evidence it was conclusive.

The judgment must be affirmed, with costs.

BabNaed, P. J., concurred; DyKMAN, J., not sitting.

Judgment affirmed, with costs.


author: BaRNAed, P. J.:

text:
    WILLIAM B. DAYTON, Appellant and Respondent, v. WILLIAM A. PARKE and Another, Respondents and Appellants.
    Ohm'ter-parrty— liability of the consignee of a cargo, for freight and demurrage — delay in unloading caused by prior occupation of the doch — “customary dispatch ” — offer of judgment — costs.

    Where a charter-party oí a vessel for the carriage of a cargo, made between the owner of the vessel and the consignor of the cargo, provided for the payment of freight upon proper delivery, and on its arrival at the dock designated by the consignor, at the port of destination, the consignee was notified thereof and made no objection, and after a delay, caused by the prior occupation of the dock by other vessels, the cargo was discharged, and the consignee received the inspector’s certificate of such discharge, and accepted the same, but thereafter refused to accept the bill of lading, by which he was to pay the freight as per charter-party:

      Held, that the consignee, being prima facie owner of the cargo, was liable to the owner of the vessel for the freight, as a matter of law, under the undisputed facts of the case.
    Under a charter-party, providing for “customary dispatch” in discharging the vessel, and for the payment of demurrage for each day’s detention of the vessel by default of the consignor or agent, a right to demurrage accrues for a delay in discharging the cargo caused by the fact that the wharf selected by the consignor was occupied by other vessels which had a prior right to unload there.
    Where the consignee of the cargo, in such a case, is also the owner thereof, he is liable to the owner of the vessel for such demurrage.
    The term “ customary dispatch” in discharging a cargo, in a charter party, means that a berth will be provided where the vessel can unload as soon as she is ready to deliver cargo and the usual dispatch of persons ready to receive the cargo.
    Where the complaint stated two causes of action, one for freight and one for demurrage, and the defendant made an oiler of judgment for an amount equal to the claim for freight, and a judgment was obtained by the plaintiff for the claim for freight and six cents on the claim for demurrage:

      Held, that the defendant was not entitled to costs.
    Appeals by botli the plaintiff and the defendants, respectively, from a judgment, entered in the office of the clerk of Suffolk county, after a trial, at the Suffolk County Circuit, on the 13th day of September, 1892, and from the respective orders denying their respective motions for a new trial, entered in said clerk’s office November, 1892, the plaintiff’s,appeal being limited to that part of the judgment which directs that the plaintiff recover on the cause of action for demurrage tlie sum of six cents; also appeals by the defendants from two orders, one entered in said clerk’s office on the T8th day of November, 1892, denying their motion to modify the verdict, and, the other, denying their motion to disallow the plaintiff’s bill of costs and to direct the taxation of the defendants’ costs, entered in said clerk’s office on the same day.
    The action was brought by the plaintiff, as master, part owner and managing owner of the schooner J. Ii. Parker, for himself and the other owners, against the defendants, as consignees of the cargo of the vessel, based upon a charter-party made between the captain of tlie vessel, acting for the owners, and Mallonee & Co., of Charleston, S. C. The charter-party specified the rate of freight and made the “freight payable upon proper delivery of cargo,” and contained provisions for demurrage. The complaint stated two separate causes of action, one for freight, the other for demurrage.
    At the close of the testimony the defendants moved for the direction of a verdict in their favor. . This motion was denied and the defendants duly excepted. The plaintiff moved for the direction of a verdict in his behalf. The defendants thereupon moved for leave to go to the jury on the question whether the railroad ties in suit had not been sold by them to the Long Island Railroad Company before the arrival of the schooner J. Ii. Parker at the port of New York in June, 1891. The defendants’ motion was denied, and they duly excepted. The court then granted plaintiff’s motion and directed a verdict in his favor and against the defendants upon the cause of action for freight for $1,661.55, with interest from July 12, 1891, and upon the cause of action for demurrage for six cents. The defendants duly excepted to this direction.
    Costs having been taxed in favor of the plaintiff, judgment was entered on the verdict as directed, together with costs to the plaintiff. The plaintiff thereupon appealed to the General Term from so much of the judgment as directed the recovery of six cents on the cause of action for demurrage, and the defendants appealed from, the judgment generally.
    At the taxation of costs the defendants presented a bill of their costs, claiming that, as they had made an offer of judgment for the claim for freight, they, and not the plaintiff, were entitled to costs under section 738 of the Code of Civil Procedure. Taxation of their costs was, however, refused, and those of the plaintiff were taxed and allowed.

      Thomas J. Bitch, Jr., for the plaintiff.

      Edward M. Shepard, for the defendants.
   BaRNAed, P. J.:

The plaintiff represents the owners of the schooner J. H. Parker. On the 19th of May, 1891, the captain of the vessel, acting for the owner, made a contract with Mallonee & Co., of Charleston, S. C., to carry a cargo of cross ties from Charleston to the Long Island Railroad Dock, Hunters Point. The cargo, when loaded, was consigned to the defendants. On the 23d of June, 1891, the vessel arrived at the dock in question, and reported her arrival to the defendants. On the twenty-ninth of June, the vessel began unloading, and finished July 1, .1891. The time consumed before the unloading commenced was occasioned by the fact that other vessels with cargoes for the dock had arrived before the plaintiff’s schooner, and thereby had a right to unload in the order in which they came. Under these facts, there is no defense to the claim for the.freight. The consignee is prima facie the owner. (Thompson v. Fargo, 49 N. Y., 188.)

Not only was the cargo consigned to these defendants, but they were notified before delivery, and made no objections. They received the inspector’s certificate that the cargo was discharged and accepted the same, and were willing to pay the freight. The defendants refused the bill of loading sent them. By its terms the consignees were to pay the freight as per charter-party. The defendants, under all the evidence wholly uncontradicted, made themselves iable for the freight, as matter of law.

By the terms of the contract for carriage, the vessel .was to deliver the cargo at a particular dock. She was compelled to be idle for lack of opportunity to unload at that dock. Is the plaintiff liable for demur-rage ? By the charter, it is provided that “ for each and every day’s detention by default of said party of second part (consignor), or agent, fifty-two dollars shall be paid by said party of the second part, or agent, to said party of the first part, or agent.” The contract in respect to unloading is expressed by the words customary dispatch,” which have a definite meaning by long usage, and by a series of decision, thereunder. Customary dispatch means a berth where the vessel can unload as soon as she is ready to deliver cargo, and the usual dispatch of persons who are ready to receive cargo. Unless there is some local reason to avoid this contract so construed, the plaintiff is entitled to recover for the six days. The charterer who selected the wharf was bound to be ready to receive, and it is no defense to the claim for demurrage that the wharf selected was occupied when the plaintiff’s vessel arrived. The consignee is liable for the demur-rage as well as for the freight. He is the prima facie owner, as has been stated. (Scholl v. Albany, etc., Iron and Steel Co., 101 N. Y., 602.)

The evidence further shows that they were the real owners and had agreed to sell to the Long Island Railroad Company, they are, therefore, liable for the demurrage. The claim for the loss of time, after the unloading commenced, is a question for the jury. It is not proven that proper dispatch was not given so absolutely that a court can fix the amount of the demurrage in this respect. The plaintiff is entitled to six days’ demurrage, at fifty-two dollars a day, and all beyond that must be established by a jury.

The defendants made an offer in the action. The complaint stated two causes of action. One for the freight and one for the demurrage. The offer was for an amount equal to the claim for freight. The judge allowed the claim for demurrage at six cents. The offer was not more favorable than the judgment. In the view we take of the claim for demui’rage, the judgment should have been for a larger sum than the nominal amount rendered.

The taxation was, therefore, right and the order should be affirmed, with costs and disbursements.

Peatt, J., concurred.

Judgment- modified in accordance with opinion. Order to be settled by Justice BaeNaed.


author:
BarNard, P. J.:
      DyxmaN, J.

text:
    MICHAEL R. DINAN, Appellant, v. WILLIAM CONEYS and HANNAH CONEYS, Respondents.

      Counter claim of a legacy in an action for the possession of land charged with its payment — form of the judgment.

    In an action brought to recover the possession of land, the title to which is claimed by the plaintiff, as devisee thereof in a will, the defendant may set up the amount of a legacy given to her by the same will, charged upon the land which is the subject-matter of the action. (Code of Civil Pro., § 501.) (Dykman, J., dissenting.)
    When the judgment in such an action is in favor of the plaintiff for the recovery of the land, and for the defendant for the amount-of the legacy, it should provide for the appointment of a referee to sell the land, and out of the proceeds to pay the legacy to the defendant and the balance to the plaintiff.
    Appeal by the plaintiff, Michael R. Dinan, from a judgment of the Supreme Court, entered in the office of the clerk of Rockland county on the 8th day of August, 1892, on the report of a referee, in an action brought to recover the possession of certain real estate.
    The separate answer of the defendant, Hannah Coneys, is as follows:
    The separate answer of Hannah Coneys, one of the defendants in this action, to the complaint of the plaintiff, respectfully shows to the court:

      First. That this defendant, Hannah Coneys, is a daughter of Daniel Dinan, deceased, mentioned in said complaint, and that in and by his last will and testament in the said complaint mentioned, he, the said Daniel Dinan, deceased, in the same clause of this said will, in which the premises described in the complaint are devised to the plaintiff, she was and is entitled to the sum of three hundred dollars, as provided in said will, as follows :

      “ He (the plaintiff meaning), being bound to pay to my daughter Hannah (the defendant, Hannah Coneys, meaning) or her heirs the sum of three hundred dollars for her kindness in taking care of her mother in her last illness, which sum I expressly charge on the property herein bequeathed or devised to him” (the said plaintiff meaning).

      Second. That the said plaintiff has never paid to this defendant, the said Hannah Coneys, the said last-mentioned sum or any part thereof, and is now indebted to this defendant, Hannah Coneys, for the same, and said sum has been, and now is, a charge on the premises described in the said complaint, and this defendant denies that she unlawfully withholds possession of said premises from the plaintiff, and claims to be entitled to a judgment against the plaintiff in this action for the said sum of three hundred dollars, .with interest from the 28th day of February, 1883, with the costs and disbursements in this action.

      Snider <& Hopper, for the appellant.

      A. dé A. X. Fallon, for the respondents.
   BarNard, P. J.:

Daniel B. Dinan devised a parcel of real estate, situate in Bock-land county, to his son the plaintiff. He gave the sum of $300 to the defendant Hannah Coneys and made the same a charge on the land. The defendants have occupied the land since the testator’s death in 1883. The plaintiff seeks to recover possession of the land. The defendant, "William Coneys, avers that he has a claim for repairs made at plaintiff’s request. The defendant, Hannah Coneys, sets up the bequest and its charge upon the lands, and asks judgment for its recovery of the plaintiff. The claim for repairs was rejected on the trial. No proof was given to show the payment of the $300 or of any part of it. The referee gave judgment for the recovery of the land by the plaintiff, and for a judgment for the bequest with interest in favor of Hannah Coneys against the plaintiff.

By section 501 of the Code a defendant may set up a cause of action connected with the subject of the action. The subject of the action is the real estate in question. One party seeks possession and the other seeks to recover the amount of a lien she has on the property created by the instrument which gave the title to the plaintiff. (The G. & H. Mfg. Co. v. Hall, 61 N. Y., 226.)

The judgment did not go far enough. There should have been appointed a referee to sell the land, and out of the proceeds to pay the legacy, and, after payment of the same, to pay over the balance to the plaintiff.

The judgment should be modified in this respect, and, as modified, affirmed, with costs.

Pratt, J., concurred.

DyxmaN, J.

(dissenting):

This ease presents some unusual features. The action is for the recovery of real property in Hockland county, formerly owned by Daniel Dinan, the father of the plaintiff and the defendant, Hannah Coneys, who is the wife of the defendant, William Coneys. Daniel Dinan died in the year 1883, seized and possessed of the property, leaving a last will and testament, by which he devised the same to the plaintiff, and gave to the defendant, Hannah Coneys, a legacy of $300, which he charged upon the land. The defendants went into possession of the premises after the death of the testator, and were in possession at the time of the commencement of this action. The defendants answered separately.

William Coneys said in his answer that he had expended large sums of money in the reparation of the buildings upon the premises, with the knowledge, pel-mission and consent of the plaintiff, amounting to $1,1T5, for which he demanded judgment against the plaintiff. The defendant, Hannah Coneys, set up her legacy and demanded judgment therefor, with interest.

The plaintiff served a reply to the answer of Hannah Coneys, in which he admitted the claim, but said that she remained up>on and occupied the premises under an understanding that the value of the use and occupation and the rents collected should be applied to the payment and satisfaction of the legacy, and charged that the value of the use and the rents received exceeded the amount of the legacy, and that the same was thereby paid and discharged.

The cause was referred to a referee to hear and determine, and upon the trial the plaintiff proved that he was the son to whom the property was devised, the death of his father, the possession of the defendants, and then offered the will in evidence and rested. He made no effort to prove the agreement set up in his reply for the satisfaction of the legacy of his sister.

The defendant, William Coneys, then undertook to prove the repairs he had made to the buildings on the premises, but the- testimony was all excluded upon the plaintiff’s objection. The interest upon the legacy of Hannah Coneys was computed and the testimony was closed.

The referee reported in favor of the plaintiff for the recovery of the premises, and in favor of the defendant, Hannah Coneys, for $447.45. Judgment lias been entered accordingly in favor of the plaintiff against the defendants for the recovery of the premises, and in favor of the defendant, Hannah Coneys, against the plaintiff for $447.45. From that judgment the plaintiff alone has appealed, but he only seeks to reverse the money judgment against him. The defendant, "William Coneys, has not appealed, and, therefore, we cannot examine the rejection of his claim by the referee. The sole question, therefore, for our determination upon this appeal is whether the referee committed an error in allowing the defendant, Hannah Coneys, to recover her legacy against the plaintiff in this action.

In the first place it was not set up and could not be allowed as a counter-claim. The plaintiff was entitled to the possession of the premises, and this was an action at law for their recovery. No counter-claim could reduce his recovery, and the claim interposed against him was not designed to work such reduction. It was an independent demand, and at most constituted a legal cause of action. In the next place no action at law could be maintained against the plaintiff for the amount of the legacy without an express promise to pay, and no such promise was set up or proven.

No personal obligation ever rested upon the plaintiff for the payment of the legacy. He could refuse to accept the devise and leave the legatee to her remedy against the land. The fact that her father gave her a legacy imposed no personal duty upon the plaintiff. He can only be sued at law as terre-tenant, or upon a promise express or implied.

The portion of the judgment, therefore, in favor of the defendant, Ha..nab Coneys, against the plaintiff must be reversed, with costs.

Judgment modified in accordance with opinion of BARNARD, P. J. Order to be settled by Justice BarNAed.


author: BaeNArd, P. J.: Pratt, J.:

text:
    AUGUSTUS N. LINDSLEY, Respondent, v. HENRY W. VAN CORTLANDT, AUGUSTUS VAN CORTLANDT and HALL B. WARING, Appellants.

      Judgment on an offer of the defendant —proceedings supplementary to execution — appointment of a receiver — bill of sale from a son to his father — action by an attaching creditor to vacate the same on the ground of fraud.

    Proof of service of a summons need not be filed on the entry of a judgment on the acceptance of an offer for judgment before trial. (Code of Civil Pro., § 738.)
    At most, where a judgment, entered on the acceptance of an offer for judgment before trial is attacked, the plaintiff in such judgment must prove the service of the summons, if required, but not necessarily by the judgment-roll.
    An affidavit of service of a summons, in an action in which judgment has been entered on an offer, may, on motion, be attached to the judgment-roll nunc pro tunc.

    An inference that a judgment, regularly entered on an offer, was entered, in pursuance of a scheme to defraud creditors, requires convincing proof of fraudulent intent on the part of both parties to the judgment, where it was entered to enforce payment of an honest debt justly and wholly due.
    It is not illegal or fraudulent for a judgment-debtor to facilitate proceedings against himself, supplementary to execution, unless there was a fraudulent intent.
    An irregularity, consisting in a receiver, regularly appointed by the county judge, in proceedings supplementary to an execution from the Supreme Court, applying to and obtaining from a County Court an order directing the sale of property in his hands in disregard of section 2471 of the Code of Civil Procedure, which declares that a receiver in such proceedings “is subject to the direction and control of the court out of which the execution was issued,” is harmless as against a creditor of the judgment-debtor, who has obtained an injunction from the Supreme Court controlling the action of such receiver in the premises.
    The facts connected with a hill of sale made by a son to his father for a valid claim, and a judgment in favor of the father, entered on an offer by the son for a further actual indebtedness, followed by supplementary proceedings and the appointment of a receiver:

      Held, to show, at most, an intent to give and accept a preference, and, in the absence of proof of fraud, not to warrant the setting aside of such bill of sale, judgment, and the appointment of the receiver, at the suit of another creditor of the son.

      Semble, that a mere attaching creditor, who has recovered no judgment in his attachment suit, cannot maintain an action to set aside such bill of sale, judgment, and appointment of receiver.

      Appeals by tlie defendants, Henry W. Yan Cortlandt and Hall ’JB. Waring, and by Augustus Yan Cortlandt, from a judgment rendered at the Westchester Special Term and entered in the office of the clerk of Westchester county on the 7th day of May, 1892, in favor of the plaintiff, a creditor of the defendant Henry W. Yan Cortlandt, in an action brought to set aside, as irregular and fraudulent, a judgment recovered by the defendant, Augustus Yan Cort-landt, against his son, the defendant, Henry W. Yan Cortlandt, for money loaned; supplementary proceedings on the execution; an order issued thereunder appointing the defendant Waring receiver in ^such proceedings, and a bill of sale of personal property made by Henry W. to Augustus Yan Cortlandt; also an appeal from ain order, entered in clerk’s office on the 27th day of February, 1892, permitting the plaintiff to set up certain allegations by way of supplemental complaint.

      John H. Ferguson, for the appellants, Henry W. Yan Cortlandt and Flail B. Waring.

      William W. Scrugham, for the appellant, Augustus Yan Cortlandt.

      James M. Hunt, for the respondent.
   BaeNArd, P. J.:

The finding that the judgment obtained by Augustus Yan Cort-landt against Henry Yan Cortlandt on the 21st of July, 1891, was irregular, illegal and void, is not supported by the evidence. The debt upon which it was founded was good, and it is so found hy the trial court. The claim was put into the hands of Rews & Schrugham for the purpose of obtaining a judgment upon it. William N. Schrugham served a summons personally upon the defendant, and he made an offer of judgment, which was accepted. In filing the papers for judgment, no proof of the service of the summons was annexed; but the summons and complaint, the offer and acceptance, both' acknowledged by the respective parties. vThe omission was subsequently corrected, and the plaintiff, Augustus Lindsley, was permitted to file proof of service. The judgment lacks nothing in form. Was it given to defraud creditors? There is nothing to prove such an intent, assuming the judgment to be valid. The plaintiff immediately issued execution upon it, and obtained a receiver. The bill of sale of the personal property given by Henry Yan Oortlandt was valid. The debt to his father was reduced, by this sale, $728. Augustus Yan Oortlandt took immediate possession, and has ever since retained it. The receiver took possession of the remaining personal assets as receiver, and, under the order of the county judge, proceeded to advertise the same at public auction, when he was arrested by the injunction herein. Augustus Yan Oortlandt was diligent, and did not suffer his execution to become dormant, and if he had a good debt, he had the same rights as a stranger. Hpon the merits the defendants are entitled to have a reversal of this judgment. It seems to be established by a long line of authorities that the plaintiff in this action, not being a judgment-creditor, cannot maintain it. (Sullivan v. Miller, 106 N. Y., 635; Briggs v. Austin, 129 id., 208; Frothingham v. Hodenpyl, 32 N. E. Rep., 240.)

The granting of the order to file the proof of the service of the summons and complaint was clearly within the power of the court if it was necessary. The service was made, and the order merely permitted the filing of the proof as if it had been filed in due time. I think the judgment was good without it. The granting of the motion made by plaintiff to insert allegations in the complaint that the bill of sale was fraudulent, was also proper. It could have been proven without the insertion of section 4 of the complaint, under the general allegations of fraud. An act done in fraud of creditors at about the same time, will be received to show fraudulent intent.

The order should be affirmed, without costs.

The judgment should be reversed and the complaint dismissed, with costs.

Pratt, J.:

I am unable to concur in the conclusions reached by the learned trial judge in this cause. The action was brought to set aside a bill of sale and certain judicial proceedings on the theory that they were fraudulent as against creditors. The controlling facts have been found or appear by evidence substantially undisputed.

Young Yan Oortlandt owed his father $7,988.50, on July 20, 1891. He also owed the plaintiff quite a sum, the precise amount not being important in my view of the questions here involved. He on that day sold certain property to his father by a bill of sale, apparently regular on its face,'in consideration therein expressed of $728.35, which sum was immediately credited by the father in reduction of this debt, thus leaving the debt $7,260.15. The father immediately entered into possession of these goods, and there is no-evidence that he did not maintain it. The sum mentioned as a consideration in the bill of sale was a fair price for the goods covered thereby. So much appears by the findings. The defendants each requested the court to find that on the same day the father commenced an action in this court against the son to recover $7,060.15. The court refused so to find on the request of the father and omitted to pass on a like request by the other defendant. The request was-, undoubtedly material as will presently appear. There can be no-question but that the action was commenced on that day. The son swore that the summons was served but did not state the date. But the findings show that on the 20th day of July, 1891, the son appeared in person in the action, and offered judgment for $7,060.15,, with costs, and that this offer was accepted on the same day. These-facts appeared without contradiction by the affidavit of the father’s, attorney, and also by due acknowledgment of both the offer and. acceptance all attached to the judgment-roll. Judgment was entered July 21,1891, on these papers and upon the summons and complaint which was verified on the twentieth, But no proof of service of the summons was originally filed with the judgment-roll. The letter of the Code did not require such proof of service. It provides that plaintiff may file the summons, complaint and offer with proof of acceptance, and thereu/pon the clerk must “ enter judgment accordingly.” It is thus plain that the judgment-roll included everything-required by the statute, and showed that the action was actually-commenced on July 20, 1891.

It is suggested that the practice required that the summons must, have been actually served before the offer could have been properly made. (On the authority of Trier v. Herman, 115 N. Y., 163.) The answer is threefold: (1.) This case decides no such point. That precise question was not involved in that case. The learned court, simply and incidentally remarked obiter that the plaintiff “ must, pursue the practice prescribed.” (2.) The Code (§ 738) does not, require filing of the proof of service of the summons. Hence this, judgment was regular on its face without that proof. (3.) At most the plaintiff in snob a judgment must prove the service if required, but not necessarily by the judgment-roll. And he did prove it by the son’s oath as a witness on this trial. Of course, his statement raised the question of his credibility; but the circumstances satisfy my mind that the statement was true. And again: Pending the trial of this action the court, on special motion in the father’s action, allowed him to file the affidavit of service of that summons, and directed the clerk to attach it to the judgment-roll nunc pro tuno. (See White v. Bogart, 73 N. Y., 256.)

• I think this supposed irregularity had some influence upon the decision. Its twenty-eighth paragraph states without limitation or qualification that this judgment was irregular, illegal and void. The defendants excepted to this finding. What the irregularity was, in what respect it was illegal, and how it was void, are matters which are difficult to understand. Here was an honest debt covered by what seems to me a perfectly regular judgment. Possibly the purpose of the parties may have been to obtain a preference; but that was not a wrong per se (Beards v. Wheeler, 16 N. Y., 213.) So, too, circumstances might exist which would satisfy the court that it was entered in pursuance of a scheme to defraud creditors ; but such an inference would require most convincing proof of fraudulent intent on the part of both parties in a case where the judgment was entered upon an honest debt justly and wholly due.

An execution was issued on this judgment July 21, 1891, to the sheriff of the county where the judgment-debtor resided, which was returned on or before August 1, 1891; and on that day an order "was obtained against him in supplementary proceedings, granted by the county judge of that county, under which he was examined before that judge on the same day; and on the same day, at the close of the examination, an order was made by the same county judge appointing Mr. Hale a receiver of the judgment-debtor’s property; and the receiver duly qualified August 8, 1891. These dates unquestionably show that the judgment-debtor was facilitating these proceedings, but there was nothing illegal or fraudulent in that, unless there was a fraudulent intent. The county judge had jurisdiction to make this order for this examination. (Code, § 2434). And because the application was made “ at the close of the examination,” he unquestionably had jurisdiction to make the order appointing the receiver. (Sec. 2464.) The case does not affirmatively show that this order was filed, but we cannot presume such an omission in view of the receiver’s subsequent qualification and proceedings. • The title of the judgment-debtor’s property, therefore, vested in the receiver. (Sec. 2468.) Subsequently (August 15, 1891), the receiver applied to the County Court of that county by petition, and that court assumed to make an order instructing him to sell the property in his hands. This may have been wrong. (Sec. 2471.) But this action did not hinge upon that point as will presently appear.

In the meantime the plaintiff sued on his,debt; ana on August 31, 1891, obtained an attachment which was delivered, based on allegations that the son had fraudulently disposed of his property. That attachment was delivered to the sheriff of the same county and was served on the receiver, who was then in possession of the property formerly owned by the son. The plaintiff then commenced this action, the object of which was to attack the Iona fides of the bill .of sale to the father and these judicial proceedings in his favor, and to have them adjudged irregular, illegal and void. And the court has, in substance, held them not only fraudulent, but irregular' and illegal.

Bor reasons already stated, they were not irregular, and it was error, as it seems to me, that they should have been thus adjudged. Nor were they void, except on the theory that they were fraudulent as against the plaintiff. This remark, of course, does not apply to the order of the County Court instructing the receiver, who was, doubtless, subject to the direction of this court. (Code, § 2471.)" But no harm has been done in that regard, because the plaintiff applied to this court in this action for, and obtained an injunction ; and the court, on hearing the parties, permitted the receiver to collect the assets, and directed that when he realized $1,890, that sum should be paid into this court, and the injunction was dissolved on the subsequent payment of that sum.

Now, I fail to detect any evidence upon which to adjudge any bad faith on the part of the receiver, and since the judgment holds all these proceedings void, there was an error committed against him which calls for reversal and a new trial. Perhaps the direction by the County Court was invalid, but his appointment was undoubtedly valid; and, since lie has acted in good faith, he was entitled to the protection of the court. There was, therefore, no reason why he should have been ignored, or for the appointment of a new receiver.

In the next place, I think the decision proceeds upon the theory of the illegality and irregularity of the bill of sale to, and proceed" ings in favor of the father. The findings in that particular are erroneous, and there should- be a reversal and new trial in favor of all parties on that ground.

In the next place, the finding of fraud seems so interwoven with this theory of irregularity and illegality, that I am satisfied that a new trial should be ordered on that ground.

In the next place, when we consider the evidence of fraud itself, it seems limited to the son. There was evidence that he declared to one witness that he intended to “ beat Gus,” evidently referring to plaintiff; but the father was not present, and for aught that appears knew nothing about that statement. Nor can I see any evidence which, in my judgment, justifies the finding of fraud against the father. Here was a perfectly valid claim by the father against the son which was paid to the extent of $128.35 by this bill of sale, a transaction which both of them had a right to make. So, too, the judgment and subsequent proceedings were based upon indebtedness actually found. If these proceedings had not been thus supported by truth, equity and justice, there might be ground for imputation of fraud against the father, as well as the son. But the fact is the other way, and the utmost that can be said is, that the son intended to prefer the father, and the father wanted to be preferred, and they were co-operating to that end. Of course, I do not mean to say that there may not be fraud in such a case. But I simply hold that there must be some other evidence of it — something more than here appears to connect the father with a fraudulent intent on the part of the son, if even that exist. True enough, their relations require us, carefully, to scrutinize their dealings, and, perhaps, to treat them with suspicion; but suspicion is not proof of fraud. It must be proved not by surmise, but by evidence which rises above the realm of mere suspicion, and to the dignity of proof. Otherwise, it would be next to impossible to sustain transactions between near relations upon any other theory. The mere relationship would justify an inference of fraud, and that is going much too far.

It is in this view that I am unable. to approve the disposition of some of the requests for findings. The refusal to find that the action was commenced July 20, 1891, in face of this proof was certainly a technical error, and, in view of the other findings, seems to have affected the decision. So, too, the finding in the decision that this bill of sale “ was without adequate consideration,” seems to me entirely at variance with the finding on the joint request of the son and the receiver “ that the sum mentioned as a consideration in said bill of sale was a fair price for the goods.”

Finally, I am afraid that the weight of authority is against the maintenance of this action in any view. The plaintiff is a mere attaching creditor and had recovered no judgment in his attachment suit when this action was commenced. We, may, therefore, wisely consider the question whether or not he will gain any advantage by a retrial of the action. (See Galle v. Tode, 38 N. Y. St. Rep., 862.)

In any view I think the present decision proceeds on erroneous theories, and, therefore, conclude that there should be a new trial, with costs of this appeal in favor of the receiver absolutely, and costs of this appeal in favor of the father to abide the event of the action.

DyKMAN, J., not sitting.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.