
    Charles S. Clark, Resp’t, v. The Exchange Printing Co. et al., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December1 1, 1893.)
    
    Fraud—Liability.
    Where an insolvent company orders goods, with the assent of its creditor, so that the latter may levy upon them, who does in fact profit thereby, such creditor is liable to the vendor therefor.
    Appeal from a judgment and order denying a motion for a new trial.
    
      Charles DeHart Brower, for app’lt Exchange Printing Co.; Marh L. Wilbur, for app’lt Francis E. Fitch ; John Vincent, for app’lt Alva E. Davis; Frederick A. Ward, for resp’t.
   Barnard, P. J.

The plaintiff is a dealer in paper. The defendant Printing Company printed and published the American Magazine for the American Magazine Company. The defendant Davis was the manager of the American Magazine Company. The defendant Pitch was the manager of the Exchange Printing Company and made orders for paper with the assent of the Magazine Publishing Company, which became insolvent with a large debt due to the defendant Printing Company. The plaintiff’s case is based upon the allegations that after the insolvency of the Magazine Publishing Company, the Exchange Printing Company and Fitch its manager and Davis manager of the bankrupt Magazine Publishing Company continued to order and obtain of the plaintiff a large amount of paper so that the defendant printing company could levy upon it on account of the indebtedness to it from the Magazine Publishing Company. The jury has found that the defendants did this and returned a verdict for the amount of the property acquired in this way and for this purpose. It was proven that defendant Davis knew of the insolvency of the Magazine Company when he ordered the paper in question. Fitch knew it. The Exchange Company profited by it. The testimony is quite voluminous, but is sufficient to support the verdict of the jury. The bankrupt magazine sold to the printing company Clark’s paper obtained for the magazine and then ordered new paper, with the printing company’s consent, to he seized under execution in its favor.

The proceedings to obtain judgment by the Printing Company were conducted by an attorney common to all the parties and companies. Marks of secrecy and design to defraud the plaintiff are visible everywhere.

The jury aimed at a proper conclusion upon the facts and, therefore, the judgment and order, denying new trial should be affirmed with costs.  