John R. Price, App’lt, v. Thomas A. Mapes, Assignee, etc., and Linn Morehouse, Resp’ts.(Supreme Court, General Term, Second Department,Headnote
■Assignment fob cbeditobs—Sale by assignee—Action to set aside— Costs.The sale by an assignee for creditors of several parcels of real estate in a lump, lack of notice of the sale to the creditors and an apparent inadequacy of consideration are sufficient grounds of suspicion to justify a creditor in bringing action to set aside the sale so as to relieve him from costs on failure thereof.
Appeal from judgment dismissing complaint.
Action to set aside a sale of real estate made by Mapes,_ asassignee for creditors of Asa Morehouse, to the defendant Linn Morehouse, on the ground of fraud and collusion.
The property consisted of a brick store-house, a double brick; dwelling and a vacant lot, and were sold in a lump for $6,000. There was testimony that the property was worth $9,000 or $10,000; but defendant gave evidence that at the time of sale it was worth about $6,000 or $7,000, and denied any intent to defraud creditors, or arrangement between the defendants. The notice of sale was published four times in two semi-weekly papers and no other notice was given.
Edward O. Perkins, for app’lt; George M. Bush, for assignee, resp’t; T. F. Bush, for resp’t Morehouse.
This 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 preclude a reversal of the judgment, it is thought a modification as to costs "will be consonant with justice.
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 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.
Dykman, J., concurs; Barnard, P. J., not sitting.