Uhlmann v. Brownell — 19 N.Y. St. Rep. 18

Majority

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Simon Uhlmann and Frederic Uhlmann, App’lts, v. Nathan Brownell, Rosella S. Brownell, S. Lavina Fuller and Henry Morgan, as Assignee, etc., of Nathan Brownell, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed November, 1888.)

Headnote

E vides-ce—Code Civ. Peo., § 839.

In the trial of an action, brought by the plaintiffs as judgment creditors of a certain firm of which Nathan Brownell was a member, to set aside a conveyance of premises made by said Brownell to the defendant

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Fuller, and by tbe defendant Fuller to Mrs. Brownell, evidence of the defendants Fuller, Ñatban and Rosella Brownell was admitted as to transactions or communications between tbe defendants and one Hubbard, who was dead (who was the former owner of the land in question, from whom Mrs. Brownell derived her title), and who was also the vendor in the contract of a sale held by Nathan and Rosella Brownell, and grantor in the deed given to Nathan and Rosella Brownell. Meld, that the evidence was properly admitted under Code Civil Procedure, section 829 ; that the plaintiffs were neither personal representatives nor survivors of Hubbard; that as judgment-creditors of said firm they derived no title or interest from, through or under Hubbard by assignment or otherwise.

Appeal from a judgment dismissing the plaintiffs complaint on the merits, entered on a report of Hon. F. B. Gilert, a referee duly appointed to hear and determine the issues herein.

T. L. Gross, for app’lts; I. S. Newton, for resp’t.

The purpose of this action was twofold; First. To set aside conveyances of the premises described in the complaint, made by the defendant Nathan Brownell to the defendant Fuller, and by the defendant Fuller to Mrs. Brownell, on the ground that they were fraudulent and void as to the creditors of the defendant Nathan Brownell; and, second, to have the general assignment for the benefit of creditors made by the defendant Nathan Brownell to the defendant Morgan adjudged fraudulent and void as to the plaintiffs.

The action was brought by the plaintiffs as judgment-creditors of the firm of N. Brownell & Son. Nathan Brown-ell was a member of that firm. The basis of the plaintiffs’ action was the fraudulent intent with which both said conveyances and the assignment were alleged to have been made. The only disputed question in this case was whether such conveyances and assignment were made to hinder, delay and defraud the creditors of Nathan Brownell, or whether they were made in good faith.

The referee fonnd that the conveyances of .the farm were made in good faith, upon a full and valuable consideration, and to perfect a title of record in Mrs. Brownell to the lands conveyed, which lands had been owned by her since 1873, subject only to a contract of sale held by Nathan Brownell, and upon which there was due Mrs. Brownell and unpaid an amount which exceeded the full value of the farm at the time the conveyances were made. He, also, found that the assignment was not made to hinder, delay or defraud the plaintiff, or any of the creditors of Nathan Brownell, or' any of the creditors of the firm of Nathan Brownell & Son, but that it was in good faith.

A careful examination of the evidence in this case has. led us to the conclusion that the findings of the learned referee are abundantly sustained by the proof, and that his decision and the judgment entered thereon should be upheld, unless some of the exceptions to his ridings on the admission or rejection of evidence require a reversal of the judg

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ment. The plaintiffs claim no error in that respect, except that the referee improperly admitted the evidence of the defendants Fuller and Nathan and Rosella Brownell as to transactions or communications between the defendants and Calvin Hubbard, who was the former owner of the lands in question from whom Mrs. Brownell derived her title, and who was also the vendor in the contract held by the defendant Nathan Brownell, and grantor in the •deed given in 1876 to Nathan and Rosella Brownell. The plaintiffs’ claim that this evidence was improperly received is based on the provisions of section 829 of the Code of Civil Procedure. The plaintiffs were neither the personal representatives nor “ survivors ” of Calvin Hubbard, deceased, and it is not apparent to us how as judgment-creditors of the firm of N. Brownell & Son, they can be regarded as having derived any title or interest from, through or under Calvin Hubbard by assignment or otherwise. The plaintiffs had no title to the farm in question, nor had they derived any interest in it from, through or under Calvin Hubbard. We do not think the evidence objected to was prohibited by that section.

We are of the opinion that this case was properly decided by the referee; that he committed no error in the admission of evidence which would justify a reversal of the judgment herein; and that the judgment appealed from should be affirmed. ■

Judgment affirmed, with costs.

Tardin, P. J., concurs; Follett, J., not voting.