Fitts v. Beardsley — 28 N.Y. St. Rep. 666

Majority

p. 666

Leander Fitts, as Receiver, Resp’t, v. Nelson Beardsley, Impleaded App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Appeal from judgment ordering and decreeing that the defendant, Beardsley, pay over to plaintiff $16,372.25 of moneys and property formerly belonging to Charles N. Eoss, and which had been transferred to Beardsley to hinder, delay and defraud creditors of said Eoss.

John D. Teller, for app’lt; JJ. V. Howland, for resp’t.

This case is precisely like the case between the same parties just decided, except that this action is prosecuted by the receiver for the benefit of another creditor, the Central National Bank of New York, who recovered a judgment on the 26th day of September, 1879, for the sum of $10,187.40. The findings of fact and the conclusions of law thereon, and the form of the judgment entered, is substantially the same as in the other action, a personal judgment being entered for the sum due on the judgment in favor of the bank and the costs of the proceedings.

As the sum realized by the appellant out of the assets of Boss, as appears by the record in this case, is greater than the sum recovered, after deducting the amount of the recovery in the other action, there is no necessity of considering any questions other than those which were passed upon in the preceding case.

Judgment is modified in accordance with the opinion in the first of these cases, and, as modified, affirmed, with costs to the respondent.

Dwight and Macombeb, JJ., concur.