Jellerick v. May — 1 N.Y. St. Rep. 577

Majority

p. 577

Felix Jellerick, as assignee, respondent, v. Moses May and another, appellants.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886.)

Headnote

1. Assignment—Evidence—When proof of declaration of assignor

ADMISSIBLE.

In an action attacking an assignment for fraud, where the proof tended to show that the assignor continued in possession after the assignment, that the assignee formally locked the door of a workroom in the house and there was proof tending to show that the key was at once returned to the assignor: Held, that under this state of the proof it was error to exclude the declaration of the assignor.

2. Same.

The admissibility of the testimony depends upon the assignee being in possession. When an assignment is followed by a change of possession the declarations of the assignor are not evidence.

3. Same—When the change of possession a question for the jury.

There was proof tending to show that the assignor continued in possession of the property for over a month after the assignment and until the levy. Held, that the question whether there was a change of possession was for the jury. That proof of a fictitious debt or that the assignment was made to defraud creditors would make a jury necessary.

p. 578

Herman Vogel, for appellant, May and another.

Fernando Bollinger, for respondent, Jellerick.

The proof of fraud in the assignment by Oumberg to the plaintiff is very light, but it was sufficient to admit the declarations of Oumberg.

The assignment was dated the 3d of November, 1884, and acknowledged the 5th of November, 1884, and there is proof tending to show that the assignor continued in the possession of the property, manufacturing and managing the stock of goods and material as usual until the 8th of November, 1885, when- it was seized by the sheriff of New York. '

The assignee formally locked the door of a workroom in the house, and there is proof tending to show that the key was at once returned to the assignor. Under this .state of the proof it was an error to exclude the declaration of the assignor. Adams v. Davison, 10 N. Y., 309 . When an assignment is followed by a change of possession, the .declarations of the assignor are not evidence. Coyne v. Weaver, 84 N. Y., 392 . The admissibility of the testimony depends upon the assignee being in possession. In Coyne v. Weaver ( 84 N. Y., 392 ) the answer of the defendant alleged that the assignee was in possession at the time of the levy, and the court held that the assignee’s declarations were inadmissible, “because made after the assignment and delivery of possession under it.”

The acts done by the assignee at about the time of the assignment, and the declarations made by him, were evidence and their rejection was improper.

The question of a lack of a change of possession as the case was left, was one for the jury. The necessity of a jury may be further shown by proof of a fictitious debt, or that the assignment was made to defraud creditors by other proof.

Judgment reversed and new trial granted, costs to abide event.

Dykman and Cullen, JJ., concur.