
    William S. Kennedy as Receiver, etc., App’lt, v. Jacob C. Wood et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    1. General assignment—Declarations of assignors.
    In an action to set aside a general assignment as fraudulent as against creditors, the declarations of the assignors made prior to the execution of the assignment are competent evidence.
    
      2. Same—Interested witness.
    It is error to instruct the jury that a witness, a creditor of the assignors, but not attacking the assignment, has an interest in breaking the assignment.
    3. Same—Intent of the assignee.
    The intent of the assignee in accepting a general assignment is not material in an action to set aside the instrument.
    4 Same—Admissions of a party.
    A party’s admissions are always competent against him whether he is a; witness or not and whether or not he is first asked concerning them.
    Appeal from a judgment sustaining a general assignment. for creditors and from an order denying a new trial.
    
      Charles I. Baker, Frank S. Black and Henry A. King, for app’lt; Charles E. Patterson and Edgar L. Fursman, for res
   Learned, P. J.

—The assignment was made October 30,. 1886. The plaintiff offered to show declarations of theassighors, made June 14, 1883, that they had a surplus of $100,000, and declarations shortly before the general assignment that they were better off than in 1883, this offer being in connection with the general assignment in which the firm appear to be largely insolvent. This testimony was excluded and plaintiff excepts. The assignors, Wood & Merrill, were party defendants. The complaint alleged that the assignment was made with intent to hinder, delay and defraud, etc. This was denied by all the defendants and an issue was raised on this allegation.

If the assignment was made with such intent on the part-of the assignors it was void. Strain v.Kelly, 88 N. Y., 418. The declarations of the assignors were evidence against them and they were defendants. Loos v. Wilkinson, 110 N. Y., 195; 18 N. Y. State Rep., 113; Von Sachs v. Kretz, 72 N. Y., 548.

This testimony, then, was admissible. * * * Was it material? It tended to show that shortly, before making the assignment the assignors were worth more than $100,000 above their debts. It must be observed that this, is not the case of debtors obtaining credit by false representations of solvency and. thereafter making an assignment. Tim v. Smith, 13 A. N. C., 31.

■ It is a question whether evidence that the assignors were, and knew themselves to be, largely solvent is material on the question of fraudulent intent. We think it is. An assignor, believing that he was worth $100,000 above his debts, would not be likely to make a general assignment with an honest intent.

We will not say that a solvent debtor may not honestly make a general assignment, but we think that proof of the debtor’s solvency, known to himself, might be some evidence on the question of his intent in making the assignment.

The plaintiff also offered evidence of statements of solvency made by the assignors in May, 1886, to Burt & Co., with a view of making a purchase which was actually made; Burt & Co. being creditors of the assignors placed in the third class. This was excluded and an exception was taken. This evidence was also admissible and material against the assignors.

The question then remains, was the evidence above referred to admissible against the assignee ? The affirmative is laid down in Loos v. Wilkinson, at page 211; so it is practically held in Von Sachs v. Kretz et al. (72 N. Y., 548), at pages 554 and 555. It is there pointed out that a general assignment for creditors is not a purchase for value. ‘ ‘That this relation between a bankrupt and his assignee creates an identity of interest between them which makes his (i. e., the bankrupt’s) declarations evidence against his assignee.”

In Coyne v. Weaver (84 N. Y., 386 and 392), the court, speaking of declarations of an assignor, says that they were inadmissible because made after the assignment and deliery of possession under it, thus, by implication, stating that they would have been admissible if made before.

The question as to the admissibility of statements made by the prior owner of property against a subsequent owner has generally arisen in litigation as to the value or validity of the transferred property. Thus in Paige v. Cagwin (7 Hill, 361), the statements affected the validity of the note. So in Brisbane v. Pratt (4 Denio, 63).

In the present case the statements are offered not to affect the value or validity of property transferred, but to affect the validity of the transfer. But we think the same rule must apply, and it is applied in Loos v. Wilkinson (supra). The general assignment for the benefit of creditors is but the instrument through which the assignor attempts to dispose of his property. If the assignor had avowed his intention to defraud his creditors by making an assignment, we see no reason why such a fraud should not be evidence of his fraudulent intent even against the assignee.

The case of Bullis v. Montgomery (50 N. Y., 352) cited by the defendants, does not apply. They were intended to prove fraud in the purchase, not in the subsequent assignment.

The assignment, after payment of expenses, provided for the payment of debts, not specifying the amount, to certain persons named in the second item, among them Thornton Kenney. The schedule named the amount owing Kenney as $750. The plaintiff asked the court to charge that the assignment was fraudulent because this was an individual debt of Merrill’s. The court refused.

As to a part, viz.: $400 of this amount, the testimony is not very clear. According to Merrill’s testimony, at one place he says that Kenney wanted some money “I owed him;” that he, Merrill, took this amount, $400, from the firm; did not pay it to Kenney; did charge himself with it, and did credit Kenney with the amount on the books of the firm.

Of course, if Merrill credited Kenney on the books of the firm with $400 which he personally owed Kenney, the entry was false; it was either a blunder or a fraud. The firm did not owe Kenney $400 which Merrill had taken from the firm and put into his own pocket. There appears, however, to have been some indebtedness of the firm to Kenney, and we think it was not error to refuse this request to charge.

The plaintiff, on cross-examination of Merrill, offered in evidence Merrill’s sworn statement that this $750 was money which Kenney had deposited with Merrill and which Merrill had loaned the firm. This was objected to •as incompetent and inadmissible. This was apparently upon the ground that the witness had not been interrogated on this trial whether that was the fact, and therefore could not be used to contradict him, and was mere declaration. Perhaps Merrill had not, on this trial, expressly stated that the $750. was a debt owing by the firm; therefore contradictory statements made previously would not have been admissible merely as impeaching the credibility of the witness, but the statements of a party can always be given in evidence against him whether he is a witness or not. It is not necessary to examine him previously as to whether he has made such statements. On the principles heretofore stated these statements of Merrill’s were primary evidence against him. The statements were made after the assignment, and hence were not evidence against the assignee.

About June, 1879, Alice Pay died in Vermont. On a petition of the heirs (so expressed), four in number, stating that Merrill was the oldest male heir, he was appointed administrator. As such administrator, he loaned to this firm over $5,000, which sum was preferred in the first class. The plaintiff claims that this was a provision for the assignor’s benefit, and hence the assignment was fraudulent. One answer to this is that there was no proof what interest, if any, Merrill had in the Fay estate at the time of the assignment. There is no evidence on that subject except as above stated. What interest, if any, the oldest male heir has in personal property under the laws of Vermont we do not know. Merrill may have long before parted with any interest which he had.

The Vanderspeigle estate seems to have been given to Merrill in trust for one Vandez’speigle. That estate was preferred hi the assignment to the extent of about $3,000. In this instance, we do not see that Merzill had any personal intez’est.

The question was asked by the defendants of McDonnell, the assignee, whether he had any intent to hinder, delay and defraud, etc. This was objected to by the plaintiff as incompetent, but was allowed. His intent was not material,, as he was not a purchaser for value. Talcott v. Hess, 31 Hun, 282; Loos v. Wilkinson (supra), p. 208.

Ho charge was made in the complaint that he had any fz’audulent intent.

Gordon, a member of the firm of Burt & Co., who were preferred in the third class, was a witness for tlie plaintiff, The court charged at defendant’s request, that if the assigned property was not moz’e than enough to pay the first and second class, Gordon had an interest in the plaintiff’s success. The plaintiff excepted. Burt & Co. were not attacking creditors in the action. The action was not brought for .the benefit of all who might join.

The relief asked was that the assignment may be declared void as to the creditors in whose behalf it was instituted; therefore we do not see how Gordon had any interest in plaintiff’s success. This part of the charge may have prejudiced the jury.

There are some other points which it is unnecessary to discuss, nor do we think it best to say anything as to the merits of the case. We might improperly influence the jury under a second trial. We therefore confine ourselves to pointing out some of the errors which we think were committed.

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

Landon, J., concurs.  