Roberts v. Tobias — 31 N.Y. St. Rep. 950

Majority

p. 950

Percival Roberts et al., App’lts, v. Francis H. Tobias et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed June 27, 1890.)

Headnote

Appeal—Assignment pok cbeditobs.

Plaintiff having obtained a judgment setting aside an assignment made for the benefit of creditors, it was reversed by the general term and a new trial granted upon questions of law, but the court of appeals reversed the judgment of the general term on the ground that the findings of fact sustained the conclusions of law of the trial court. Afterwards the general term amended its reversal so as to state that the judgment was reversed on questions of fact as provided by § 1338, Code Civil Procedure, and a reargument in this court was granted. Held, that the finding that the assignment was made for the purpose of hindering, delaying and defrauding the plaintiff was not sustained by the evidence, and as it now appears that the reversal was upon a question of fact the judgment should be affirmed in favor of defendants.

p. 951

Appeal from an order of the general term, first department, reversing a judgment entered upon the decision of the special term.

A. JET. Ammidown, for appl’ts; Charles JET. Griffin, for resp’ts.

This action was brought to set aside an assignment made for the benefit of creditors. The trial resulted in a judgment for the plaintiffs. On an appeal to the general term the judgment was reversed and a new trial granted upon questions of law. On an appeal to this court the order of the general term was reversed and the judgment of the trial court affirmed upon the ground that the findings of facts sustained the conclusions of law made by the trial court. After the decision of this court was announced the general term made an order amending its order reversing the judgment so as to state that it was reversed upon questions of fact, as provided by § 1338 of the Code of Civil Procedure, after which an application was made to this court for a reargument, which was granted.

The finding that the assignment was made for the purpose of hindering, delaying and defrauding the plaintiffs was not sustained by the evidence, and it now appearing that the reversal of the general term was made upon a question of fact, it follows that the order should be affirmed and judgment absolute ordered for the defendants upon the stipulation.

All concur