
    In the Matter of the Application of Anthony W. Dimock, an Insolvent Debtor, for His Discharge from His Debts. Anthony W. Dimock, Appellant; Farmers’ Loan and Trust Company and Others, Respondents.
    
      Insolvents discharge under the Two-third Act—proof as to his residence—consents of creditors—debts an'ising under transactions against public policy, not considered — waiver of the Statute of Limitations as to certain creditors only—promise to work five years for consenting creditors — conditional releases—good faith—petitioner disposing of property for the future benefit of his family — admitting testimony after a case is closed.
    
    Upon an appeal from an order dismissing the petition of Anthony W. Dimock, an insolvent, for a discharge from his debts, it appeared, upon the question of the petitioner’s residence, that the application was made to the County Court of Ulster county, in which county the petitioner with four associates owned a club house in a solitary region of the Catskill mountains, where it was his custom to remain during several months of each year for rest and recreation, but that his actual domicile was in Elizabeth, Hew Jersey, where he and his family lived.
    
      Held, that the term residence embraced the idea of a'domicile, either for the purpose of living or of business, and that the county of Ulster was not the place where the petitioner resided or had a domicile within the meaning of section '2150 of the Code of Civil Procedure. ■
    Upon the question of the consents of the creditors to his discharge it appeared that Dimock & Co., an insolvent firm of which the petitioner had been a member, were the promoters and principal stockholders of the Bankers and Merchants’ Telegraph Company, of which the petitioner was president, Yale its secretary and treasurer and Hegeman its vice-president; that the nominal capital of the company was §3,000,000; but that the amount of stock actually paid for and issued was much less, and that the stock was in fact of little or no value. In order to create a demand for the stock the petitioner, Dimock, asked two of the consenting creditors, Yale and Hegeman, to buy and sell the stock in the.market and carry it for him and promised to indemnify them against loss; he placed 1,000 shares of the stock in Yale’s hands as margin and Hegeman advanced the necessary margin himself.
    
      Meld, that such transactions, entered into merely to create the appearance of an active demand for stock which had no intrinsic value, and to assist in foisting the same upon innocent purchasers, were contrary to public policy, and that an agreement to that effect would not be enforced; that Yale and Hegeman were not thereby constituted creditors of Dimock;
    'That as their statement of the nature of their demands was that they were for money loaned on security and for cash advanced at various times on pledge, it was questionable whether the real nature of the demands and the general grounds of the indebtedness had been stated in the manner required by section 2160 of the Code of Civil Procedure.
    It further appeared that the demands of Yale and Hegeman were apparently barred by the Statute of Limitations, and that the statute was waived by the petitioner for the benefit of the alleged creditors, Yale and Hegeman, while the statute was insisted upon as a bar to other creditors.
    
      Meld, that these circumstances indicated bad faith, and that the finding of the county judge, that the petitioner was not justly indebted to Yale and Hegeman, would not be disturbed.
    It further appeared that the petitioner, in his schedule, after his statement of certain debts, added the words: “Believed to be barred by the Statute of Limitations.”
    
      Meld, that this statement sufficiently raised an issue which objecting creditors were entitled to meet, and that, as the holders of the debts were parties to the proceeding, the county judge had jurisdiction to pass upon the issue.
    It further appeared that most of the consents cif creditors were obtained upon the promise of the petitioner that if he obtained his discharge he would devote five years of his life to the benefit of his consenting creditors.
    
      .Meld, that while this arrangement was, perhaps, not obnoxious to sections 2160 and 2163 of the Code of Civil Procedure, forbidding a consent to be given in consideration of a gift or reward, it bore upon the question of good faith and made the consents given of doubtful validity.
    It further appeared that many of the demandswefe released under an instrument • which recited that an action had been begun by the assignee of Anthony W. Dimock, the petitioner, and Arthur Y. Dimock, against the United States National Bank to recover the sum of approximately §3>688,360, the proceeds of which it was proposed to apply to the liquidation of the debts of the assignors, and that the signers of the instrument, in consideration of receiving their proportionate share of the net results of the litigation, “hereby agree to release” the assignors from all claims.
    
      
      Held, that the agreements were not absolute releases, but were conditional agreements to release;
    That as this asset was of doubtful realization, the use made of it to obtain the instruments, taken in connection with the fact that the bank in question was an objecting creditor, added another questionable feature to the case.
    It further appeared that in 1873 the' petitioner went through bankruptcy and was discharged and began business again, and then began to put aside securities for the benefit of Ms wife and family, which at the time of the assignment were represented by a fund amounting to §300,000, but at that time the fund had not been delivered to his wife nor to any trustee for her. Thereafter it was delivered to a trustee for her benefit, and was used to support the petitioner's family.
    
      Seinble, that the affidavit made by the petitioner, as required by section 3163 of the Code of Civil Procedure, to the effect that he had not at any time or in any manner whatsoever disposed- of any part of Ms property for the future benefit of himself or his family, was untrue.
    It further appeared that after the testimony was closed, and while the county judge was considering the case, the objecting creditors obtained an order opening the case and allowing them to submit further testimony.
    
      Held, that the order was within the discretion of the county judge.
    Appeal by the petitioner, Anthony W. Dimock, from an order of the County Court of Ulster county, entered in said clerk’s office on the 5th day of April, 1895, dismissing upon the merits the petitioner’s application for a discharge from his debts, and also from an order bearing date the 11th day of March, 1895, and entered in said clerk’s office, allowing tl)e objecting creditors to introduce further documentary evidence after the testimony had been closed and the case was under consideration.
    
      George H. Hart, for the appellant.
    
      David McClure and Arthur H. Van Brunt, for objecting creditors, respondents.
   Landon, J.:

The county judge dismissed the petitioner’s application upon the merits, holding, in effect

1. 'That the petitioner was not, at the time of presenting his petition, a resident of the county of Ulster. (Code Civ. Proc. § 2150.)

2. That he did not annex to his petition the consents, to his discharge, of his creditors having debts owing them in good faith, amounting to not less than two-thirds of ¿11 the debts owing by him. to creditors in this country. (§ 2152.)

3. That it did not appear that he was indebted to the consenting creditors in a sum which amounted to two-thirds of all his debts.

That the petitioner was not a resident of Ulster county at the time he presented .his petition, but was a resident of Elizabeth, N. J., we thinlc was abundantly established by the evidence. Indeed, the only foundation for his claim of a residence in Ulster county was the fact that for several years, during a considerable .portion of the summer' months, and sometimes during a portion of the spring and aiitumn months, he temporarily inhabited a club house or “ cabin,” as he himself sometimes styled it, in a solitary region of the Catskill Mountains situated in Ulster county. He and four associates owned the club house and a considerable parcel of the wilderness about it. It seems to have been a retreat that suited the petitioner’s notions, and perhaps his needs of rest, recreation, recuperation and enjoyment.

But the evidence satisfactorily shows that during the ten years next preceding the time of presenting hi» application, and at the time of presenting it, his actual domicile and home residence was in Elizabeth, N. J. It was there — first in a house on Anna street, and later' in another on Broad street, both houses being ample and comfortable mansions — that he and his wife and family, with their servants, lived and had their home. "Whenever, wherever and however absent,, the petitioner had the intention of returning there. It is difficult to regard seriously the proposition that his actual residence was in his mountain retreat. That was simply a sojourning place, between which and his residence he flitted in favorable seasons. He presented his petition October 2, 1893, and it is pressed upon us that, immediately preceding and up to that date, his stay in. the' mountains had been nearly continuous for about three months. That, fact does not strike us with much force, in view of his apparent stay there for the purposes of this case, and the absence of his intention to abandon his- home in Elizabeth.

The learned counsel for the petitioner presents an able and el'ab- • orate argument' to the effect that, for the purposes of insolvency proceedings, the residence. required by the Code as a condition of the jurisdiction of the county judge does not necessarily imply the. place of the petitionér’s domicile.

In the case of The People v. Platt (117 N. Y. 167), which dealt with the meaning of residence ” as an essential to eligibility to-office, it was held that the idea'of domicile was embraced. It maybe that, under the statute, a Chinese merchant whose domicile is in Hong Kong, but whose business residence is in Hew York, could properly apply for a discharge in the latter place. (Matter of Wrigley, 4 Wend. 602; affd., 8 id. 134; de Meli v. de Meli, 120 N. Y. 485, 491; Hart v. Kip, 42 N. E. Rep. 712.)' Certainly the petitioner’s business residence was not in Ulster county. We think, in view of the petitioner’s residence and domicile in Hew Jersey, and of the kind and place of his sojourns in this State, that the county judge properly held that he was not a resident of the State or of Ulster county, within the meaning of sections 2149 and 2150 of the Code.

In the schedule annexed to his petition the petitioner claims that-the sums owing the consenting creditors aggregate $921,406.97, and that the sums owing to non-consenting creditors, including disputed claims and debts claimed to be barred by the Statute of Limitations, aggregate $416,452.06, thus showing consents as to more than two-thirds.

Among the consenting creditors are John B. Yale and John R. liegeman. The contesting creditors challenged the claims of these two alleged creditors, and the county judge in effect held that it did not satisfactorily appear that the petitioner was “justly and truly indebted” to them. (Code, § 2174.) Mr. Yale in his consent alleges that there is due him from the petitioner $333,815.62, being for “money loaned on security of stocks and bonds, and cash advanced at various tunes prior to May 15, 1884, for.purchases of shares of stocks and bonds and shares, with interest.” Mr. Liegeman in his consent alleges that there is due him from the petitioner $171,212.78, being for “ cash advanced at various times prior to May 15,1884, on pledge of 1,700 shares of Bankers and Merchants’ Telegraph Company stock, with interest at six per cent to October 10, 1884, less proceeds of sales of said shares,” with interest on balance to May 1, 1893; also that “said indebtedness arose from advance of cash, made or caused to be made by said deponent for the purchase and parrying of 1,100 shares of Bankers and Merchants’ Telegraph stock for account of said Anthony W. ■ Dimock as per statement herewith.” The total of these two alleged debts is $505,028ill, and,-if disallowed, the requisite two-thirds would not be shown..t.c, have consented.

The evidence showed the following state of facts: Dimoclc & Co. were the promoters and'principal stockholders of the Bankers and Merchants’ Telegraph Company... The petitioner, was the ¡3resident of the company; Tale,, its secretary and treasurer, and Hegeman,. vice-president,. The nominal capital of the company was $3,000,000, but the amount of stock actually paid for and issued was much less, To induce purchases of this stock it was necessary to keep up its price, and create an apparently active market for it. • We quote from the brief of the petitioner’s counsel: “ It was, therefore, materially to his interest that the stock of the corporation should be enhanced in value, which would depend upon the demand for the stock by purchasers and investors. Every purchase and investment in the stock increased the demand for it, and consequently its value, or, at least, its market price, and every subscription to the stock of the company added to the cash in its treasury available- for the extension of Its lines and the improvement of its property.” i i,

. .Tale testified that: ‘TEvery thousand- shares bought, directly, by-, me, or caused to be bought by my brother or friends, amounted to a subscription to the-capital stock of $100,000 and over.”'

Dimo.ck asked both. Tale and Hegeman.to buy and sell it in the market and carry it-,, and promised to indemnify each of them against loss. -He placed 1,000 shares-of the stock-in Tale’s hands as his margin or security, to which Tale, could add in his -executory contracts'- t.o. buy or sell the additional shares each contract called for. Hegeman appears to have advanced whatever margin above the shares themselves that liis" contracts required.

- .Dimóck & Cods failure -in 1884 practically destroyed the market-value, of the . stock, and,-hence, Tale’s , and Hegeman’s. respective losses. Following his failure, Dimock & Go. made an. assignment, as partners and as individuals. In the. schedules -made under the assignment-neither of'these claims is mentioned. Mr, Tale-there appears .as a. creditor for $33,000. Hence,, there is some ground, for the inference that the debts now stated were not then considered as existing or valid. This assignment was set aside by the judgment of the court. By comparing the facts respecting the origin of the alleged debts with the statement of their nature made in the consents by the respective claimants, a discrepancy in statement appears. Tale’s statement in his consent is that his claim is “for money loaned on security of stocks and bonds and cash advanced at various times.” liegeman’s is “ for cash advanced at various times * * "x" on pledge of 1,700 shares of Bankers and Merchants’ Telegraph Company stock.” The fact in both cases appears to be that the losses occurred in an attempt to assist Dimock to foist upon innocent purchasers the stock of the telegraph company by falsely creating an appearance of an active demand for the stock at fictitious prices. Tale says he bought or agreed to buy 3,000 shares at about $1.30. The fact that its price gradually fell to one cent,. when Dimoclc could no longer sustain it, is instructive as to its intrinsic value. Dimock, Hegeman and Yale were officers of the company and presumably knew the intrinsic worthlessness of the stock. Such transactions are' contrary to public policy, and the party losing by them is left remediless by the courts. (Nellis v. Clark, 4 Hill, 424.)

The Code requires that the consenting creditor must state the-nature of the demand, with the general ground or consideration of the indebtedness.. (§ 2160.) Under the circumstances, it was open to question whether the real nature of the demand with the general ground of the indebtedness was not suppressed.

Besides^ these demands accrued in 1884, and are apparently barred: by the Statute of Limitations. There is no evidence to the contrary, except the fact that the petitioner classes them as valid. We need not hold that the insolvent debtor cannot waive the statute. Undoubtedly he can do so, so far as he himself is concerned.

Murray v. Judson (9 N. Y. 73) was a case in which a general assignor for the benefit of creditors preferred his assignee in whose favor he had confessed judgment upon an alleged usurious debt, and another judgment creditor sought to set the assignment aside.. The court held that the assignor might make such a preference, but-said : “We are not asked to determine whether a provision for a usurious debt may not in certain cases be evidence more or less cogent of a fraudulent intent on the part of the debtor.” In .this-case the waiver is for thé benefit of the petitioner. He thus- resurrects uncollectible demands, and it is inferable from the evidence that his waiver of the statute is the. consideration of the consents given by their holders. Thus the consents are. at the expense- of his non-consenting creditors, and, -if valid, the petitioner may thus punish the non-consenting and reward the consenting by admitting' the latter to participation in the fund from which they otherwise might be excluded. The fund in this case is but $187, but there may be a satisfaction othér than pecuniary in coercing non-consenting creditors to resort to it. We think -that if the Statute of Limitar tions is waived in order to qualify the holder of the demand to give his consent, and insisted upon in order to exclude from the schedule Of his debts the claims of other creditors who are thus not permitted to be heard, as .will hereafter appear, the court in.determining; whether-the consents were given by persons- to whom the petitioner is justly and truly indebted, may considerthat fact, .among others, in determining the. question. In- view of the facts -referred to; wei think the county judge very properly held that it did not satisfactorily appear, that the. petitioner- was justly and truly -indebted to, Yale or Hegeman, and, therefore, that the requisite consents- werei not given.

The petitioner claims that of the debts stated in his schedule- of non-assenting creditors, the Statute of Limitations bars claims, amounting to $188,422.99. Since the holders of these debts are parties to this proceeding, the county judge had jurisdiction so to find, provided the issue was presented to them. In his schedule,, the petitioner,' in his statement of each of the debts composing the above aggregate, added the words, Believed to be barred by the Statute of Limitations.” Section 2162 requires the- petitioner to¡ annex'to his petition a schedule containing a full .and true account: of all his debts. How, he may owe debts as to -which lie -can- avail himself of the defense of the'Statute of Limitations, and although, the word “ account ” in the section is probably used in its-commercial sense, it is fair, we think,, to construe it as also-embracing such an account or 'statement as. will show fhe debtor’s defenses to the debts which he sets forth. We think the issue was sufficiently tendered to the objectors to the discharge. Whether, upon final distribution,, the holders of the thus disputed debts who did not appear would be-barred from participation in the fund, we need not here consider. The county judge, however, makes no finding upon these claims except as it is implied in his order dismissing the proceeding on the merits. If we retain these debts among the non-consents, the petitioner’s case is hopeless. But, assuming that they should be excluded, then we have non-assenting creditors to the amount of $228,029.07.

Total debts in petitioner’s schedule, good and bad.. $1, 337, 859 03

Deduct Tale’s and Hegeman’s...... $505,028 11

IS! on-consenting, barred............ 188,914 29

-— 693, 942 40

Total debts.............................. $643, 916 63

Of which one-third is......................... 214, 638 87

Two-thirds..............:.................... 429, 277 74

Consents.................................... 416, 378 76

It is proper to state that the petitioner disputes on other grounds some of the demands of the ■ non-consenting creditors and claims a release as to the demands of Opdylce & Co., obtained after these proceedings were commenced, which, if allowed, would change the balance, as above stated, in his favor. If we go into all these details upon both sides of the account, we are satisfied that the deficiency of consents will appear much larger. Thus, most of the consents were obtained upon the promise of the petitioner that if he obtained his discharge he would devote five years of his life to the benefit of his consenting creditors. Section 2160 of the Code of Civil Procedure requires that the consenting creditor must make affidavit that he has not received from the debtor any gift or reward of any kind upon an express or implied understanding that he should consent to the discharge. Section 2163 requires the affidavit of the petitioner that “I have not paid, secured to be-paid, or in any way compounded with any of my creditors with a view fraudulently to obtain the prayer of my petition.” We need not hold that the petitioner’s promise, given upon such an undei’standing, was a valuable gift, but it seems to be tampering with the good faith which the statute requires, and we doubt whether consents thus acquired should be allowed. -

Again, A. W. Dimock & Co. failed.in April, 1884, with liabilities to- the amount of $2,600,000, secured to some extent by collaterals. Comparing the schedules filed in connection with their assignment in .that year with the schedule filed With the petition in this proceeding; there appears to be omitted from the latter schedule debts' to the amount of $1,248,182.59; excluding interest' and deducting for debts apparently duplicated because of • the same debt being included in different accounts.

The petitioner here presents releases of various kinds of debts to the amount of $1,024,233.04, leaving the total omitted from his schedule in this proceeding $223,949.55. It is urged that these debt's are barred by the Statute of Limitations, but as they are omitted from the schedule and the creditors holding them have not been heard, this ' cannot tie determined. It does not appear that these debts" have been .paid or released. " If we add them, even without adding interest to the non-consenting side of the account the deficiency of' consents is greatly increased".

Moreover, of the demands thus released and above deducted, $'241,068.75 were released by instruments^ most of. which Were drawn as follows:

“ Whereas, an action has been commenced in the Supreme Court of the State of Hew" York, by Henry W. "Potter, assignee of Anthony W; Dimock and Arthur Y, Dimock against the United States Hational Bank and others, for the purpose, among other things, of recovering the sum. of $3,688,360.00, or thereabouts,;
“ And Whereas, it is proposed to apply the.proceeds of said"action to the liquidation of the debts of A, W. Dirnock. & Co., as far as possible, "
“How, we, the undersigned, in consideration of receiving our proportionate share of the net results of said litigations, hereby agree to release, the said Anthony W. Dimook and Arthur Y. Diinock from all claims we hold against them or eitherof them.”

These were not absolute releases, but conditional agreements to release. If we add these creditors to the non-consenting list, the deficiency of consents becomes hopelessly irretrievable..

We judge from the testimony that the asset alleged in the action against the ..United States Hational Bank is not one upon which large immediate realization is expected. The assignment of the cause of action'precedes the petition in this proceeding more than two years, and, therefore, is not within the condemnation of section 2173, though it is not clear that it is not within that of section 2163, hereafter quoted in part. The use which has been made of the action to obtain releases and agreements to release, and to give color to the claim of an offset against the judgment of the bank, which appears as an objecting creditor, adds another questionable feature to the case.

In 1873 the petitioner went through bankruptcy, and, upon obtaining his discharge, began business again. He then began to put aside securities for the beneiit of his wife and family, but-he retained the possession and control of them. This fund amounted to $200,000 in 1884, at the time of his assignment. It does not appear that, previous to his insolvency in 1884, this trust fund had in any way been delivered to his wife or to any trustee for her. Afterwards it was delivered to a trustee for her beneiit. Of course this so-called trust fund was Dimock’s property (Wadd v. Hazelton, 137 N. Y. 215), and ought to have-been applied for the .benefit of his creditors, and perhaps would have been so applied if the assignment had not been set aside. But, in order to set it aside, one Wheeler, apparently in the interest of the petitioner, was made the nominal purchaser of a large number of alleged demands against the Dimocks; he sued upon them, obtained judgment for $144,070.50, and then brought an action in the nature of a creditor’s bill to set aside the assignment, obtained judgment, had a friendly receiver appointed, and then sold his judgment to Mrs. Dimoclc’s trustee for one dollar, and then the receiver let the trustee keep the trust fund. At any rate, he has kept it, and it has supplied Dimoclc and his family ever since.. Section 2163 requires the petitioner to make this affidavit: “I have not, at any time, or in any manner wliatesover, disposed of or made over any part of my property * * * for the future beneiit of myself or my family, or disposed of or made over any part of my property in order to defraud any of my creditors.”

He did make such an affidavit, but his view of the facts was probably different from that which we entertain.

The county judge did right in dismissing the application on the merits.

. Some time after the testimony was declared closed by the respective counsel, and the county judge was holding the case under consideration, the conlestingi creditors moved‘and, obtained an order to Admit further testimony. . An appeal was also taken from that order,. Wé think that this order was clearly within the .discretion of the ".«county' judge.

Orders'affirmed, with costs and disbursements.

All concurred.

■Orders affirmed, with costs and disbursements.  