
    Jose A. Del Valle, App’lt, v. Josiah A. Hyland et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 16, 1894.)
    
    Fbaudulent conveyance—Stale claim.
    A barred claim presents a sufficient consideration for a transfer of propcrty in payment, provided the amount is not so excessive as to manifest an intent to defraud creditors.
    Appeal from a judgment dismissing the complaint on the merits.
    
      G. 0. Hulse, for app’lt; Julien T. Davies and Herbert Barry, for resp’ts.
   Per Curiam.

This action was brought by a judgment creditor of the defendant Navarro to set aside the transfer made to the defendant Hyland for five life insurance policies upon the life of the defendant Navarro for $10,000 each, on the ground that the same was made to hinder, delay, and defraud creditors of Navarro. The first ti'ial of this action resulted in a judgment dismissing the complaint upon the plaintiff’s case, which judgment, upon appeal to this court, was reversed, and a new trial ordered, 40 St. Rep. 924; 15 N. Y. Supp. 901, upon the ground that the proof would have sustained, although it did not require, a finding that the assignment was made in bad faith, and with intent to hinder creditors, and that it was error to dismiss the complaint. Upon the second trial, and upon the whole evidence, as well of the defendants as of the plaintiff, a judgment was rendered dismissing the complaint as to both defendants upon the merits. As upon the first trial, it now appears that “in January or February, 1889, Mr. Josiah A. Hyland, one of the defendants, found on the table of his private office a written instrument purporting to have been executed by Mr. Jose F. Navarro, the other defendant, on the 31st day of December, 1888, whereby that gentleman transferred all his light, title, and interest in and to five policies of life insurance for $10,000 each, subject to a claim thereon of $15,000 by Charles Coudert’s executor, for which Mr. Coudert held the policies as collateral security. Although the transfer was not personally delivered to the defendant Hyland, but was, as stated, found by him on his table, it appears by the evidence of both defendants that their being placed there was the result of prior conversations resulting in an agreement by Mr. Navarro to deliver such policies in payment of his indebtedness to Mr. Hyland. The value of such policies on the 31st of December, 1888, in case of the death of Navarro, was considerably over $50,000, and as paid-up policies, nearly that amount, and their value as cash policies on that date was $24,039.95; so that, if we deduct the $15,000 due to Mr. Coudert, and interest, there would remain a cash value in the policies of about $9,000. It was found by the learned trial judge, and conceded, that at the time these transfers were made the defendant Navarro was insolvent, and that such insolvency was known by defendant Hyland. The consideration, as claimed, for the transfer by the former to the latter, consisted of an indebtedness of about $19,000 (exclusive of the $15.000 due Coudert, and interest thereon, which the defendant Hyland testified he assumed), comsisting of five principal items:

Cash prior to and up to the 24th day of November,
1880.......................................... $6,132 00
Interest on same, which the defendant Navarro guaranteed to the defendant Hyland on the money given him from November 24, 1880, to December 21,
1888....'......................................
$2,981 17
Indebtedness of defendant Navarro to defendant Hyland for professional legal services from in or about 1880 up to December 31, 1888...................
5.000 00
Indebtedness of defendant Navarra to defendant Hyland for office rent of defendant Navarro’s two sons.
2.000 00
Deficiency judgment paid by defendant Hyland on or about February 29, 1888, on a bond given by him at the request of the defendant Navarro for money received by defendant Navarro on a loan on real estate in Eighty-seventh street, New York city... „
2,573 11

These claims for moneys advanced, services rendered, office rent, and for the payment of the deficiency judgment, were supported by the testimony.of both defendants; and, if such testimony is to be credited, then the findings of the court below were amply sustained, and the judgment should not be disturbed ; because it would thus appear that, for an indebtedness of about $18,000, the defendant Hyland had received policies, the cash value of which would not exceed $10,000 over and above the $15,000 for which it was pledged to Mr. Coudert. The fact that the defendant Navarro was insolvent, and that Mr. Hyland knew it, would not prevent the former from securing or paying the latter a valid existing indebtedness; and the giving of a preference to Hyland cannot be sussessfully assailed by the other creditors. That a debtor has the right to pay the claim of one creditor in preference to and to the exclusion of all the others has been many times decided. Though a criticism can justly be made upon the loose way in which the dealings between the defendants were carried on, and though the usual indicia of indebtedness—such as notes, the presentation of bills or demands for payment, and the keeping of an account* showing such indebtedness in the books of the creditor—are wanting, and are susceptible of different inferences, still the testimony offered of the close and intimate relations between them, the strong financial position which the defendant Navarro once held, and the confidence in his financial ability which those dealing with him entertained, explaining the loose manner of their dealings, left it a subject peculiarly within the province of the trial judge to determine ; and in the end whole question narrows down to one of credibility,'—as to whether or not this alleged indebtedness upon various items which have been alluded to was a scheme arranged between the defendants for the purpose of creating fictitious claims, and thereby securing to themselves the benefits of the policies of insurance, and thus defrauding Navarro’s creditors. In an action of this kind, where an assignment or transfer is sought to be set aside upon the ground that it was made with intent to hinder, delay, and defraud creditors, presenting, as it does, a question of fact, and when, upon sufficient evidence, this is determined one way or the other, and there is no such preponderance of evidence as would require this court to set aside the judgment and grant a new trial, then the decision of the trial j udge should not be disturbed. Here a suspicion is created by reason of the peculiarity and ’staleness of some of the items going to make up the indebtedness; and where, as here, a claim remains unpaid for a period so long that it is barred by the statute of limitations, then a doubt as to whether it has not been paid, or as to its ever having had a valid existence, is created. But where it is shown that there was a moral obligation, to say the least, to reimburse the defendant Hyland for what he had paid out in settlement of the deficiency judgment, or loaned in cash to Navarro, although the claim may have been barred by the statute of limitations, there is present a sufficient consideration for the transfer of property in payment, provided the amount of such property is not so excessive that it appears to have been made with'intent to hinder, delay, and defraud creditors, or provided such intent is not otherwise shown.

Considerable stress is laid upon the fact, as claimed, that the trial judge made certain findings upon insufficient evidence, and, contrary to the plaintiff’s request, refused to make findings which were justified by the evidence. With respect thereto we can but repeat what has been said lately in the case of Faxon v. Mason, 59 St. Rep.,(decided herewith),—that upon the trial of an action such as this, the court is not bound to find the evidence which supports the conclusion; all that is required is that there should be sufficient evidence to justify the finding and conclusion that the transfer or assignment was made with or without intent to hinder, delay, or defraud creditors. We find no valid ground for disturbing the decision of the trial judge, and think that the judgment should be affirmed, with costs.  