
    Martin V. B. Smith et al., Resp’ts, v. James White et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Ebaudulent conveyances—Assignments fob the benefit of creditors— Intent to secure a benefit for the assignor—Effect of.
    James WMte made an assignment to one Wise. The evidence surrounding the making and carrying out of the assignment, showed that it was not made in good faith, but that it was made for the purpose of the assignor-getting some benefit therefrom, and that such was the- purpose of the preferences which were made by the assignment. Held, that it was immaterial how great may have been the good faith of the preferred creditors. That if the assignment was made by the assignee for the purpose of getting; for himself some benefit, that it was void.
    Appeal from judgment of the special term.
    
      Otto Hortwitz, for app’lts; A. Blumenstiel, for resp’ts.
   Van Brunt, P. J.

This appeal is based entirely upon a. consideration of the facts, and it is claimed that the evidence introduced upon the trial, failed to support the findings of fact of the court below.

The action was brought to set aside an assignment made by the defendant James White, to the defendant Charles-Wise, for the benefit of creditors. In and by said assignment were preferred certain endorsements of the firm of L. & O. Wise, of which the assignee was a member, and also an indebtedness- due by the said James White, to the said firm of L. & C. Wise. There were next preferred, certain debts of James White to one John Dwyer.

It was claimed upon the part of the plaintiffs, who are judgment-creditors of James White, that this agreement was made with intent to hinder, delay and defraud the creditors of James White. And it is claimed that the evidence shows that there was a fraudulent concealment of the property by James White, and that a fraudulent arrangement was entered into between the assignor and the assignee, whereby the assignor was to receive certain benefits out of the assigned property.

The evidence to establish these propositions was largely circumstantial, and depends upon inferences to be drawn from the acts of the parties, in reference to the assigned estate. It is true that in regard to the arrangement for the benefit of the assignor, the assignor has directly testified to such agreement; but it is apparent from the nature of the testimony of the assignor, that no reliance whatever can be placed upon any evidence which he gave, unless it is in some way corroborated by the other evidence in the case, or the circumstances which have been established otherwise than by his testimony.

The evidence of the assignor in reference to his disposition of the $700 worth of goods which he claims were in his house at the time of the assignment, and which were never delivered over to the assignee, is of such a character as conclusively proves that any evidence that he might give is totally unreliable.

It appears from his testimony that he sold this $700 worth of goods for the purpose of supplying necessaries for his family; that he was in great need of money; - that he sold these goods to various people, all in the city of Brooklyn, but he is not able to name a single person to whom he sold a single article. This story is absolutely incredible and is undoubtedly false. It is impossible for anybody to place any credit upon a statement so palpably false as this. The fact of the sale of these goods certainly was a matter of some importance to the assignor at this time, in view of his alleged necessitous circumstances, and that he should have sold the whole without being able to name a single-purchaser, and all in Brooklyn cannot be credited. It is true that he subsequently testified to the fact that he sent some of these goods to the firm of A. S. Richards & Co., but how much, when or where, is in no way disclosed.

The story upon the part of the wife of the assignor, that these goods were retained by her from time to time because of her wages, which remained unpaid, is equally incredible. This seems to have been an invention of her own, because during his examination the assignor White seems to have claimed these goods, and he and his wife do not seem to have been exactly in accord as to the circumstances under which these goods were retained in his house.

It is true that it is urged upon the part of the assignee that this story is entirely a fabrication and that no such goods ever existed; that there were certain goods, a part of the stock of leather in the house of the assignor which the assignee procured, and he then examined and did not find any other goods there, and such a quantity of goods as testified to by White could not have been there without his seeing them; and it may be that the existence of these goods was due to the fertile imagination of the assignor.

If the assignor had these means at his command, why should he be so solicitous immediately after the assignment to obtain money from the assignee. The evidence is, beyond dispute, that attempts were made; that his necessitous circumstances were pleaded in order that his old friends, L. & O. Wise, who had been the consignees of his goods, should relieve his necessities.

It becomes necessary, therefore, in order to sustain this charge of fraud, that we should look to see whether there is any evidence to show that a fraudulent intent existed upon the part of the assignor cannot be found from those facts, which are established from other sources, without the evidence of the defendant and his wife.

It seems to us plainly deducible from the evidence of the other witnesses in the case that the defendant White did not intend to part with his property for the purpose of paying his creditors without the hope of ultimate reward. He believed that he would derive some benefit from the administration of this property after the assignment.

From what this belief arose we are not informed except so far as it supports the statement which was made by White of the agreement between himself and the assignee, as to his future employment. But that such a belief existed seems to be beyond question established by the evidence of Wise who states that in a conversation had shortly after the assignment when White was being shoved aside that White did not like it at all and stated that he did not think the business was to be done in that way; that he thought he was going to run the factory.

It further appears from the evidence 'of the assignee that in respect to the horses and the yacht it was understood between the assignee and White that he should get the yacht and the horse and wagon and that the assignee told him he would protect him all he could and that he should have the first chance provided he paid as much as anybody else. It further appears that the assignee allowed White to select appraisers for the yacht in order to determine the value at which it was to be turned over to him; and White seems to have thought his rights in reference to the yacht in consequence of the agreement made were of such a character as justified him in taking possession of the same and it required legal proceedings on the part of the assignee to get it back. The whole atmosphere surrounding the inception and the carrying out of this assignment shows that it was not made in good faith on the part of White, but that it was made for the purpose of getting some benefit therefrom; and that his preference of the debts due to L. & C. Wise were made because he expected to derive some benefit therefrom from the firm of L. & C. Wise, and not simply for the purpose of paying their debt. The attempts to borrow money immediately after the assignment were indicative of this. The inference naturally follows from the circumstances attending these loans that they were applied for based upon the fact that in the assignment White had preferred L. & O. Wise. Loans seem to. have been made to Mrs. White by the firm of L. & O. Wise. They may possibly have been induced by this consideration.

But it is entirely immaterial how great may have been the good faith of L. & O. Wise in respect to this assignment, if we find from the whole evidence that there was a fraudulent intent upon the part of James White or that the assigment was made by him because he supposed that he was going to get some gain therefrom. Whether the hope was well-founded or not, the fraudulent intent existed which invalidated the act as against all his creditors.

The references therefore which were arrived at by the court below are not so unsupported by testimony as would justify this court which has not the witnesses before it in disturbing the conclusion even if' we thought that the weight of evidence was in favor of the defendants. But upon a consideration of the circnmstances attending this assignment and the subsequent acts of the parties thereunder we cannot but come to the conclusion that at least James White was actuated by a fraudulent intent in making this disposition of his property which he had a right to do if actuated by proper motives.

There is another transaction which is attacked by the plaintiffs in this action. It is a sale of a portion of the assigned property to one Hirsch. It is claimed upon the part of the plaintiff that the conclusion drawn by the court that this was a sale by the assignee to his own firm, is amply supported by the evidence showing the transaction in all its details. That there was evidence enough to sustain the conclusion of the court in this regard, we cannot doubt. It may be, however, that the conclusion is more strongly established by the failure to prove facts than by the facts established.

The circumstances proved were of such a character as necessarily to call upon the defendants for explanation; and satisfactory explanations were not forthcoming, and the absence of such explanations necessarily led to the one result.

It appeal's from the evidence that the assigneé’s firm of L. & O. Wise were largely engaged in business as commission merchants, and that the defendant, Leon M. Hirsch, was also engaged in business as a large shoe dealer in Grand street. They appear to have been acquainted with each other for a considerable length of time; but it does not appear that they had had any commercial dealings of any magnitude prior to the one in question. The assignee being fearful that replevin proceedings would take out of his possession a considerable part of the assigned property, and thereby the chance of his firm getting their preference largely diminished, concluded that it was necessary to get rid of the assigned property in the shortest manner possible, and Hirsch was applied to for the purpose of carrying out this scheme. After a very superficial examination of the property to be sold, he buys the same with money borrowed from Leopold Wise, and which appears to have been advanced by the firm of L. & C. Wise to L. Wise. This money, or some portions of it, Hirsch claims to have repaid in bibs, no check ever having passed, and no account of the same ever having been entered in any book. Ab that is presented are receipts for the money and some loose memoranda on manila paper.

It appears that immediately after this purchase a nephew of L. & O. Wise, and a clerk in their employ, is put in charge of the property ; that White and his wife are employed upon*the premises ; that almost ab the goods manufactured are consigned to L. & C. Wise, and sold by them, and that leather which was in the factory was stored, at the suggestion of L. & C. Wise, under their immediate control.

It further appears that the policies of insurance were only taken out for three months. It further appears that when almost immediately after, a purchaser for this warehouse was sought the Wises conducted the negotiations for sale and received the money upon its sale, and that in fact Hirsch paid no attention whatever to the business, saw nothing of the contents of the books kept at the factory, and had no entries in his own books in respect, thereto.

The excuse wmch Hirsch gave for making his payments to L_ & O. Wise in bibs was that large amounts of bibs were received in his store on Saturdays and that he did not want to go to the bank and deposit them, so he handed them over to the Wises. But a different influence seems to have operated when he was paying for his purchases, and also when he was giving Marcus Wise, who was in charge of the property, the money paid for labor at the factory. He states that the reason why he gave the checks for ab the purchases that he made was that he did not want to give the- boy $500 or $600 in bibs, and that he did not always have them in the store. • And immediately thei-eafter he states that he paid Wise in bibs because he had them in the store and did not want to go the bank, an inconsistency which shows conclusively the fact that ab this manoeuvering was done to cover up the real transaction. Business men do not do business in that way. Their operations are entered in their books, and payments are made by checks rather than by bibs, and it is only when it is deemed desirable that the transaction should not be traced that bills are resorted to. If checks had been used in these payments to Wise, it could have been ascertained beyond all question precisely how the account stood and where the money came from, but it being claimed that these payments were made in bills, it is impossible to determine whether they were payments in fact or mere receipts given, L. & O. Wise being all the time the real parties in interest. That they were such, seems to be evidenced by all their actions. They seem to be the ones, through their clerk, who controlled the factory, and they also seem to have been the ones who interested themselves in the sale thereof, and this pretended loan from L. Wise to Hirsch seems to have been solely for the purpose of covering up the ownership of L. & C.Wise.

It is impossible to discuss all .the evidence taken in this case at length, but the deductions which have been drawn therefrom are not of such a character that this court should interfere with these conclusions. It is true that they are supported by inference rather than by direct evidence, but when we consider all the circumstances surrounding the case, and the atmosphere which pervades every act done in connection with it, we cannot but come to the conclusion that there was something wrong about the whole transaction.

We are therefore of opinion that the judgment should be affirmed, with costs.

Brady and Bartlett, JJ., concur.  