
    The York Haven Paper Company and Others, Appellants, v. Josiah W. Place, as Assignee for the Benefit of Creditors of Walter & Place, Respondent, Impleaded with Others.
    
      Assignment — the question of intent to defraud creditors is one of fact — a decision that it did not exist, sustained.
    
    The question whether a firm which withdrew from its bank account §800 prior to making an assignment for the ^benefit of creditors, intended to defraud its creditors, is a question of fact.
    Evidence given by the assignors to the effect that the assignment was not, contemplated or determined upon until after the failure of their efforts to obtain a loan which would tide them over the crisis, and until after the disbursement of a considerable part of the money withdrawn, and that §300 of such money had been paid to employees of the firm and the remainder had been used by the assignors in the payment of individual debts and of household expenses, is sufficient to sustain a finding that the money was not withdrawn with intent to defraud the firm' creditors.
    The fact that the §800 item was charged upon the firm books to merchandise instead of to cash, and that the testimony given by the assignors in proceedings supplementary to execution was at variance with that given on the trial, are circumstances to be considered by the court in reaching a conclusion, but are not necessarily controlling upon its determination.
    Appeal by the plaintiffs, The York Haven Paper Company and others, from a judgment of the Supreme Court in favor of the defendant Josiah W. Place, as assignee for the benefit of creditors of Walter & Place, entered in the office of the clerk of the county . of New York on the 26th day of September, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Joseph A. Arnold, for the appellants.
    
      J. S. L'Amoreaux, for the respondent.
   Hatch, J.:

The plaintiff is a corporation and a judgment creditor of Ernest A. Walter and Oscar W. Place, copartners dealing in paper under the firm name of Walter & Place in the city of New York. The action is brought to set aside a general assignment for the benefit of creditors made by Walter & Place on the 26th day of December, 1894, to the defendant Josiah W. Place as assignee. The basis of the action is that the assignment was made with intent to hinder, delay and ■ defraud creditors, and is, therefore, void. Specific . grounds are urged as furnishing a sufficient basis upon which to predicate a finding that the assignment was made with intent to hinder, delay and defraud creditors. It is claimed that on the day of the assignment the defendants withdrew from the bank where they kept their funds the sum of $800, which they used to pay •individual debts; that such withdrawal was made in contemplation of the assignment and indicated a clsar intent to cheat and defraud their creditors. There may be circumstances where the withdrawal of a substantial sum of money by the assignor in contemplation of •an assignment is sufficient to compel an inference of fraudulent intent which will render the assignment void as to creditors. Fraud, however, is a matter of fact and must be found as a fact based upon all the circumstances surrounding the transaction. The withdrawal of money prior to the making of an assignment for the benefit of creditors by the' assignors, presents, therefore, a question of fact for the determination of the court, and unless the character of - the acts done by the assignors necessarily implies a fraudulent intent, the finding of the court will be sustained, if within the rules applicable to a review of findings by a trial court upon the facts, which govern this court in the review of such questions. (Fay v. Grant, 53 Hun, 44; affd. on appeal, 126 N. Y. 624; Birdsall Mfg. Co. v. Schwarz, 3 App. Div. 298; Feldstein v. Richardson, 27 id. 3.)

We are, therefore, called upon to examine the proof upon this question. The assignors testified that at .the time when .the money was drawn out of the bank they did not contemplate and had not considered making an assignment; that they had made application to an aunt, through an uncle,, for a- loan of money which they expected to get, and which if obtained would-tide them over their business difficulties, and in fact have rendered an assignment unnecessary. The uncle saw the assignors on the afternoon of the day of the assignment, and informed them that the aunt declined to make the loan. The money alleged to have been fraudulently withdrawn had been so withdrawn prior to this time and some considerable part of it already paid out. Walter had received $300 with which lie paid some individual debts and gave the remainder to his wife who used the same for household expenses. White, an employee of the firm, was paid the sum of $200 ; other clerics and employees received about $100; and Place received the remainder, using it in the discharge of individual debts. After the notice of the refusal of the loan, the assignors called upon their attorney to consult with him about devising a plan which-would relieve them from their financial embarrassment. After much consultation it was determined to make a general assignment of all their property for the benefit of their creditors. The court found that the assignment was not made with intent to hinder, delay and defraud creditors, and, therefore, sustained the transaction. It is quite evident that upon this proof the court might have found that the money was withdrawn in.contemplation. of the assignment, and that the sum so withdrawn was of so substantial an amount as to indicate a purpose upon the part of the assignors to appropriate to themselves property which of right belonged t-c their creditors. Such conclusion would have been authorized within the authorities which we have cited. But that is not the question which confronts us. Are we so certain that the court ought so to have found as to be able to say that its conclusion is wrong? We think not. If the assignors when they drew the money did not contemplate the making of an assignment, and had no intent to defraud their creditors, then they were guilty of no act of fraud in withdrawing and using this money. There must have been the preconceived design to obtain the money and appropriate it to their own use with intent to defraud their creditors of it, in order t-o make the act fraudulent. The most that can be said in ■ favor of the appellants’ position is that the proof would have supported a finding either way; and such being the condition, we are required to give effect to the determination of the court below.

It is insisted, however, that the assignors are not entitled to credence : First, for the.reason that a false entry was made in the cash book of the $800 item, it being charged to merchandise instead of to cash. The assignor making the entry testified that it was made after the assignment, and was so entered by mistake; second, that the testimony given in proceedings supplementary to execution showed that the testimony given upon this trial is, in fact, false; and, third, that there was a failure to produce books and checks. Reither the false or mistaken entry in the book nor the contradictory statement between the testimony given upon the trial and that given upon the examination, furnished conclusive evidence in favor of the appellant. They were both circumstances for the consideration of the court in reaching a result, but they were not necessarily controlling circumstances. The court was entitled to consider them as satisfactorily explained, and- such conclusion would be authorized. The failure to produce the checks and books was sufficiently answered by the occurrence of the tire which destroyed some, and. the drenching' by water which mingled some of the papers and books with other matter in such form as to work their destruction.

No other question .is presented that seems to require discussion. It follows that-the judgment should be affirmed, with costs.

Van Brunt, P. J., Rümsey, Patterson and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  