
    ADAM EMMERICH, Appellant, v. PETER HEFFERAN, et al., Respondents.
    
      Creditor's action—when lies—evidence of fraudulent intent.—New trial on ground of newly discovered evidence.
    
    An action by a judgment creditor to set aside conveyances on the ground that they were made to hinder, delay and defraud creditors, cannot he maintained upon proof merely that the conveyances were made without consideration, and while the indebtedness to plaintiff existed. Northampton Bank v. Kidder, 50 Super. Ct. 246, followed, as to granting new trial on ground of newly discovered evidence.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
    
      Decided March 1, 1886.
    Appeal from a judgment in favor of the defendant, and also from an order refusing plaintiff’s motion for a new trial made subsequent to the trial, on a case made, and on the ground of newly discovered evidence.
    The action was brought by a judgment creditor to set -aside certain conveyances made by his debtor.
    The judge before whom the action was tried, found that plaintiff’s claim, for which he subsequently obtained judgment against defendant Peter Hefferan, was in existence in and prior to December, 1882 ; that on December 29, 1882, said defendant -transferred his property to his wife through their son, for the consideration of $1, and at the same time took, back from her a power of attorney, authorizing and empowering him to collect the rents thereof, and also to mortgage, sell and convey the property ; that action was commenced on plaintiff’s claim in January, 1883, and on August 2, 1883, judgment was entered and execution issued and returned unsatisfied; that this judgment was opened, and thereafter judgment was again rendered in favor of plaintiff, and execution issued thereon, and returned unsatisfied.
    The alleged newly discovered evidence upon which the application for a new trial was based, was the testimony of one Mooney, who was present at the making of the transfers in question, to the effect that the defendant Peter Hefferan told him that certain parties had claims against him for a house in Fortieth street, which he had sold (which was plaintiff’s claim), and that he did not propose they should get a cent, which was the reason why he was making the transfer ; and that the said Catharine Hefferan, when the transfer was being made, declared that the property still belonged to her husband, and that he could have it whenever he wanted it. And also testimony taken in supplementary proceedings, subsequent to the trial, in which proceedings defendant Peter Hefferan testified that the property transferred belonged to him and was earned with his own labor ; that it was all the property he had; that he transferred it to his son for nothing, who conveyed it to his mother ; and that at and prior to such transfer he knew of the claim of plaintiff being made against him, also that whatever moneys he had since made, he had also turned over to her ; and the defendant, Catharine Hefferan, testified that she gave nothing whatever for the property, but received it as a present from her son, and that she did not know whether she was at the office when the deeds were executed.
    On the motion for a new trial on the case and on the ground of newly discovered evidence, the following opinion was delivered:
    
      “ Ingraham, J.—It is evident from an examination of the case as settled, and the affidavits, that the action was tried by plaintiff’s attorney upon the theory that it was only necessary for him to prove, to entitle plaintiff to a judgment, that the conveyances made by Peter Hefferan to his wife were made without consideration, and made at the time the indebtedness to the plaintiff was in existence. The judge before whom the case was tried held that that was not sufficient, and dismissed the complaint. That decision I shall not review on this motion, but will leave the plaintiff, if he wishes to review the judgment, to his appeal.
    “In the case of the Northampton Bank v. Kidder (50 Super. Ct. 246), in affirming an order denying a motion for a new trial, the court says : ‘ To grant a party a new trial after such determination, in order to enable him to prove what, upon the first trial, he considered and treated as immaterial and irrelevant, though involved in the issues, would not be sanctioned by authority, but on the contrary, would establish a dangerous precedent, for in every such case a party must be held bound by the course pursued by his counsel. If the rule were otherwise, all a defeated party would have to do in order to obtain a new trial would be to retain new counsel and start a new theory.’
    “ It does not appear but that the plaintiff could have called the defendant or defendants’ son, through whom the conveyance was made, as witnesses on the trial, and the fact that on a subsequent examination in supplementary proceedings the defendant Peter Hefferan testified to the existence of a state of facts at the time of the conveyance that would have aided plaintiff if such testimony had been given on the trial, is not under the rule ground for granting a new trial. The fact that since the trial plaintiff has discovered evidence of declarations made by the grantor to the grantee is not such newly discovered evidence as would justify the granting of this motion. These declarations would be only evidence as against the party making them and would be material only for the purpose of showing the intent with which the conveyances were made. As before stated, however, it is evident that plaintiff did not consider that direct evidence of the defendants’ fraudulent intent was necessary. Under all the circumstances, I do not think that plaintiff has made out a case that would justify me in granting this motion.
    “Motion must, therefore, be denied, with $10 costs to the defendant to abide the event.”
    
      Wm. G. Me Crea, for appellant.
    
      Townsend, Dyett, & Einstein, for respondents.
   By the Court.

— O’Gorman, J.

— This action was brought by the plaintiff, a judgment and execution creditor of defendant, Peter Hefferan, to set aside a voluntary conveyance of real estate made by him to his wife, through their son as intermediary, and without any valuable consideration, on the ground that the same was made with intent to hinder delay and defraud creditors.

The action was tried at special term without a jury. Judgment was entered for the defendant, and from this judgment the plaintiff appeals.

It is the law that no conveyance shall be adjudged fraudulent as against creditors and purchasers, solely on the ground that it was not founded on a valuable consideration (Genesee, etc. Bank v. Mead, 92 N. Y. 637; 2 R. S. ch. 137, § 4). Fraudulent intent must be proved as matter of fact, either directly or by necessary inference, and at the trial of this case, no such proof was made.

The learned trial judge did not find any fact tending to-prove fraudulent intent, nor was he requested by the learned counsel for the plaintiff to do so ; and the judge did find, as a fact, that the conveyances were not made with fraudulent intent.

In some cases of this kind, it has been an important inquiry, whether the person making the conveyance as to which fraud was imputed, was, at the time the conveyance was made, without means sufficient to pay his debts (Cole v. Tyler, 65 N. Y. 73 ; Popfinger v. Yutte, 49 Super. Ct. 312; Dunlap v. Hawkins, 59 N. Y. 342; Fox v. Moyer, 54 Id. 125 ; Genesee, etc. Bank v. Mead, supra). No evidence on this subject was produced in the case at bar, and the action appears to have been tried on the theory that, proof of the conveyances having been made without consideration, and while the indebtedness to plaintiff existed, was sufficient to entitle plaintiff to a judgment in his favor. The learned trial judge was right in holding otherwise.

A motion was made at special term for anew trial, on the ground of evidence, discovered since the trial, tending to show defendants’ fraudulent intent. From the denial of this motion an appeal is also taken.

In the case of Northampton Bank v. Kidder (50 Super. Ct. 246), the proper rule as to granting or denying a motion of this kind is clearly laid down.

The motion was addressed to the discretion of the court, and we see no reason to doubt but that in this case, that discretion was properly exercised.

The judgment is affirmed, with costs, and the motion for a new trial is denied, with $10 costs.

Sedgwick, Ch. J., concurred.  