
    The Bradley & Currier Co., Limited, Resp’t, v. James J. Lally, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed February 8, 1893.)
    
    Composition — Fraud—Secret advantage.
    Plaintiff refused to sign a composition deed entered into by defendant with his creditors, unless it should receive a note for $500 in addition to the compromise sum fixed in the deed, and, upon so signing, received from defendant such note with notes for its percentage, without the knowledge or consent of the other creditors. Held, that such transaction was fraudulent and permeated the entire series of notes, and that none of them were valid or enforceable.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court.
    
      Theodore H. Friend, for app’lt; George F. Alexander, for resp’t.
   Fitzsimons, J.

The defendant, a builder, in January, 1891, being insolvent, entered into a composition deed with plaintiff and his other creditors, whereby they agreed to accept from him twenty-five per cent of their respective claims, to be paid by his promissory notes, at stated periods, and released him from the balance of their respective claims.

The defendant was indebted to plaintiff in the sum of $2,109.11 at the time plaintiff signed the composition deed, January 14, 1891.

It received from defendant in addition to the notes provided for in the composition deed a note for five hundred dollars, so that plaintiff received notes representing twenty-five per cent of its claim against defendant in accordance with and by virtue of the composition deed, and in addition thereto a note for five hundred dollars not within said deed, and which increased the per cent received by it in notes to forty-eight per cent of its claim.

The giving of the latter note was not known or consented to by the other creditors of defendant.

The notes given under the composition deed were three in number, each one being for $175.76; one was paid; this action is brought to recover upon the other two notes and the five hundred dollar note above mentioned.

Judgment was directed by the learned trial justice for plaintiff for the full amount claimed, with interest, $903.10.

The defendant at the trial testified that plaintiff refused to sign the composition deed unless the note for five hundred dollars was first given, which was done.

The plaintiff’s officers testified that defendant volunteered to give said note.

One of them testified that the note was executed and delivered just before the composition deed was signed by plaintiff; another officer said that it occurred just after the signing; but as I view the rule of law applicable to this case, it is entirely immaterial which statement is the true one.

The testimony of both plaintiff and defendant is to the effect that plaintiff would not sign the composition deed unless it received in addition to the compromise sum accepted by defendant’s creditors and fixed in the deed the five hundred dollar note in suit, thereby receiving a money benefit and advantage not accorded to or received by the balance of defendant’s creditors, and which was not known to them.

The dealings of plaintiff as above stated were unconscionable and the law stamps such acts as fraudulent.

In composite transactions a creditor who is party thereto is not permitted to make a secret reservation of part of his claim from the operation of the compromise or stipulation for a secret advantage over the other creditors.

The law exacts from all parties to a compromise the most scrupulous good faith.

It enforces a wholesome morality and inculcates the principles of honest and fair dealing by defeating any advantage attempted to be gained either by working upon the necessities of the debtor or by colluding with him. Almon v. Hamilton, 100 N. Y., 532.

In this case the plaintiff worked upon defendant’s necessities. It was one of his largest creditors.

It signed the deed after several other creditors had signed, and no doubt refused to do so unless the five hundred dollar note was first given.

Such a transaction was undoubtedly fraudulent, and affected, permeated and vitiated the whole transaction and all things done thereunder, so that not alone is the note for five hundred dollars not valid and enforcible against defendant, but because of the fraud related the other two notes given under the composition deed and unpaid, for one hundred and seventy-five 76-100 dollars each are tainted and corrupted by the fraud, and are also void, The Hanover National Bank v. Blake, 49 St. Rep., 433, so that the trial justice erred when he directed a verdict for the plaintiff.

Upon the testimony herein, it was his duty to have directed a verdict for the defendant.

It being apparent even from plaintiff’s testimony that it cannot hope to recover judgment herein a new trial would be useless.

The judgment appealed from is vacated, and judgment absolute for defendant ordered, with costs.

Van Wyck, J., concurs.  