In re Final Settlement of Accounts of Cleflin — 20 N.Y. St. Rep. 465

Majority

p. 465

Matter of Final Settlement of Accounts of Edwin J. Cleflin, as Assignee of William H. Harris.

(Supreme Court, General Term, Fifth Department,

Filed January 11, 1889.)

Headnote

1. County court—Jurisdiction under general assignment act—Executed transfer of property—Relief against on ground of fraud.

Where a party seeks to set aside an executed transfer of property on the-ground of fraud, the relief can only be granted by a court of equity, or by some tribunal possessing equity powers in the particular matter by legislative authorization. By section 22 of the assignment act it is provided that all orders or decrees in proceedings under the act shall have the same force and effect, and may be entered, docketed, enforced and appealed from the same as if made in an original action brought into the county court.

2. Same — Assignment — Jurisdiction — Assignee of creditor—(Chap. 466, Laws 1877, amended by chap. 318, Laws of 1878).

When a preferred creditor under the general assignment act assigns part of her claim against the assigned estate: Held, that the county court has jurisdiction to direct the payment of such portion .to the person to whom the same was so assigned.

3. Same—Practice—Referee’s -report.

Rule No. 30, of the general rules of practice, requiring testimony of witnesses to be signed by them and filed with report of referee, does not apply to proceedings under general assignment act, which are special and statutory.

p. 466

Appeal by Celestia V. Harris from certain provisions of an order of the Steuben county court, confirming the report of a referee appointed to pass upon the account of assignee, and directing a distribution of the assets among the creditors; and also an appeal by the same party from an ■order of the Steuben county court denying her motion to set aside the report on the ground of alleged irregularity.

John S.' Griffin, for app’lt; Irving Paine, for George Hollands; D. L. Benton, for the assignee.

After a careful examination of this case we are unable to discover any sufficient reason for disturbing the order of distribution, as recommended by the referee and confirmed by the county court. A brief statement will present the material questions of fact in dispute, as well as the legal propositions involved in the controversy.

Mrs. Harris,.the appellant, is the wife of the assignor, and her debt against her husband in the amount of $1,000 is preferred above all other creditors except those who are first to be paid, under the statute. The assets distributed were sufficient in amount to pay her claim in full. On the accounting the respondent George Hollands claimed that one-half of that sum should be paid to him as the assignee of Mrs. Harris, and the order so provided. The assignment under which he claims is in writing and in form is sufficient to convey to Hollands one-half of the said indebtedness, and to authorize its payment by the assignee.

The granting clause of the assignment is, viz.: “ The said Celestia V. Harris hereby sells,- assigns, transfers, sets over and conveys to the said George Hollands all her right, title, claim and interest in and to certain debt and demand, * * and the said E. J Cleflin is hereby authorized and directed to pay said Hollands all sums of money which would otherwise be paid to said Celestia V. Harris under said assignment, and to take his receipt and discharge therefor.”

Mrs. Harris claims that she was induced to make the transfer by reason of certain false and fraudulent representations, made by Hollands and others, acting with him and for him, to the effect that the assignment made by her husband, was fraudulent and void in law, and unless she assigned to Hollands, one-half of her claim, he would institute or cause to be instituted, legal proceedings, to have the same set aside as fraudlent and void, and by that means she would lose her debt, as her husband was insolvent and unable to pay the same, otherwise than as provided by the said assignment.

We have, for the purposes of this appeal, assumed, that the appellant did, in proper form and manner, present the

p. 467

question of fraud to the court below, that .the same might be tried and determined by the referee. It was not shown upon the hearing, nor did the referee find that the general assignment was fraudulent and void for any reason.- It was not found by the referee as a fact, nor was he requested to find by the appellant, that the statements and representations made by Hollands, were false and fraudulent, and made-with the intent to cheat and defraud the appellant. The referee was requested to make certain findings, which, in the form they were presented to the referee, consisted of statements made by Hollands tp the appellant during the negotiations which resulted in the transfer by the appellant to him of one-half of her claim. We refer particularly to the proposed findings, Nos. 2, 3, 4, 5, and 13.

Such requests beingin'substance re-statements of portions of the evidence, but not a request for a general finding of fact, as a conclusion drawn from the evidence that the statements and representations were false and untrue, and made with an intent to cheat and defraud, they therefore do not authorize the legal conclusion, that the assignment was fraudulent and void. The appellant claims nothing, which, if true, would in the law vitiate the transaction between herself and Hollands, except the one already stated, that she was cheated and defrauded by his misrepresentations. If the assignment made by the appellant is permitted to stand, then that part of the order directing payment to Hollands of one-half of the amount of her debt against the assignor was correct and supported by the assignment, and the county court had jurisdiction to direct its payment. Matter of Accounting of Morgan, 99 N. Y., 145 .

Where a party seeks to set aside an executed transfer of property on the ground of fraud, the relief can. only be granted by a court of equity or by some tribunal possessing equity powers in the particular matter by legislative authorization. By section 22 of the assignment act it is provided, that all orders or decrees in proceedings under the act shall have the same force and effect and may be entered, docketed, enforced and appealed from the same as if made in an original action brought into county court. Chapter 466, Laws of 1877, as amended by chapter 318, Laws 1878; Matter of Accounting of Morgan (supra).

The powers of this court on appeal from a judgment or order rendered by a county court are prescribed in section 1340 of the Code of Civil Procedure as amended in the year 1888. Without considering whether this amendment enlarges our jurisdiction in the matter now before us we have examined the exceptions taken to the referee’s refusal to find as requested by the appellant and after examining all the evidence we are satisfied that none of his refusals to find are against the weight of evidence.

p. 468

The point is .made that the evidence of the several wit-' nesses examined before the' referee was not signed by them and filed with the referee’s report as required by standing rule No. 30 of this court. That rule does not apply to proceedings of this character which are special and statutory.

We have bestowed attention on the numerous other points made by the learned counsel for the appellant and fail to discover any error which should lead to a reversal of either of the orders appealed from.

Both orders affirmed, with ten dollars costs and disbursements.

.All concur.