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Gomez v. Hagaman

32 N.Y.S. 453 Court N.Y. Gen. Term Decision date 1895-02-12 English

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p. 453
(84 Hun, 148.)
GOMEZ et al. v. HAGAMAN et al.
(Supreme Court, General Term, Third Department.
February 12, 1895.)

Headnote

Fraudulent Conveyances—Preference of Creditors—Bill of Sale.
A failing debtor may prefer any of his creditors by a bill of sale to the extent of his entire property, as the statute limiting the amount of preference only applies to general assignments for the benefit of creditors.
Appeal from judgment on report of referee.
Action by Jose Gomez and others against William Hagaman and others to set aside a bill of sale of certain personal property made by defendants Samuel Stevens and John J. Van Schoonhoven, composing the firm of Samuel Stevens & Co., to the defendants Hagaman and others, composing the firm of Frank Wooster & Co., on the ground that the same was made and accepted with intent to hinder, delay, and defraud creditors, and on the further ground that it was in violation of the law relating to assignments for benefit of creditors. The complaint was dismissed on the merits, and plaintiffs appeal.
Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Montignani, Mallory & Elmendorf (George H. Mallory, of counsel), for appellants.
. George H. Stevens, for Samuel C. Wooster.
Stedman, Thompson & Andrews (Arthur L. Andrews, of counsel), for respondents.

It is now settled that a failing debtor any of his creditors by a bill of sale to such an extent as his property will permit; that the statute limiting the amount of preferences only applies to a general assignment for creditors. The conclusion reached by Parker, J., in London v. Martin, 79 Hun, 229 , 29 N. Y. Supp. 396 , is clearly supported by the authorities cited in his opinion.

The only questions, then, to be considered, are of fact. After read- • ing and carefully considering the evidence contained in the case, and the elaborate points presented by counsel, we have reached the conclusion that we cannot properly reverse the findings of the referee on the facts. There was testimony from which he was justified in determining that the firm of Samuel Stevens & Co. assumed the debts of Samuel Stevens, in his business, existing on April 1, 1887. Such an assumption may be established by facts and circumstances, although there was no express agreement between the parties to that effect. Peyser v. Myers, 135 N. Y. 599 , 32 N. E. 699 ; Hannigan v. Morrissey (N. Y.) 27 N. E. 402 . The facts and circumstances appearing in this case were sufficient to sustain the conclusion reached by the referee, and the evidence also upholds his finding that the bill of sale which this action is brought to set aside was not executed with intent to hinder, delay, or defraud creditors. If the White debts mentioned in the bill of sale was not a copartnership, but an individual, debt of Samuel Stevens, that fact would not, in our judgment, avoid the bill of sale as to Wooster and Hagaman; the evidence

p. 454
showing that they received it in good faith, to secure honest debts, and without any knowledge that White’s claim was not a firm debt. We think it unnecessary to enter into a discussion of the questions of fact involved, and conclude that the judgment should be affirmed, with costs.

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