Price v. Mapes — 7 N.Y.S. 747

Majority

p. 747

Price v. Mapes et al.

(Supreme Court, General Term, Second, Department.

December 10, 1889.)

Headnote

Assignment for Benefit of Creditors—Sale by Assignee—Braud.

The sale, by an assignee for benefit of creditors, of the real property of his assignor, at public auction, in a “lump ” instead of by parcels, without notice to creditors, and for an apparently inadequate consideration, affords sufficient grounds for-suspicion of fraud to justify a general creditor of the assignor in suing to set the-sale aside, so as to relieve him from costs.

Appeal from special term, Orange county.

Action by John R. Price, a general creditor of Asa Morehouse, against. Thomas A. Mapes, assignee for benefit of creditors of Asa Morehouse and Linn Morehouse, to set aside a sale of the real property of Asa Morehouse, made by Mapes, as assignee, to Linn Morehouse, on the ground of collusion, and fraud. The complaint was dismissed, with costs, and plaintiff appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Davenport, Smith & Perkins, (Edward C. Perkins, of counsel,) for appellant. George M. Bush, for respondent Mapes. T. F. Bush, for respondent Linn Morehouse.

The case is a very close one on the evidence; and, while the-better position of the trial judge to pass upon doubtful questions gives such weight to his opinion as to prevent a reversal of the judgment, it is thought a modification as to costs will be consonant with j ustice. The sale of the various lots of ground in a “lump,” instead of by parcels, the lack of notice to the creditors, and an apparent inadequacy of consideration, we think, were such grounds of suspicion that the plaintiff was justified in bringing his action; and we think he ought to be relieved from costs. Judgment appealed from modified by striking out the costs and allowances granted, and, as thus, modified, affirmed, without costs of appeal. All concur.