First National Bank v. Bard — 32 N.Y. St. Rep. 1010

Majority

p. 1010

The First National Bank of Jersey City, App’lt, v. Frederick B. Bard, Individually and as Assignee, et al., Resp’ts.

(Supreme Court, General Term, First Department

Filed July 18, 1890.)

Headnote

1. Appeal — Case.

"Where the case on appeal does not state that it contains all the evidence, the appellate court cannot inquire whether the findings of fact are against the weight of evidence.

3. Assignment por creditors — Judgment.

The single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment does not, of itself, irrespective of -the other facts connected with the transaction, necessarily require the conclusion that the confessed judgment is a part of the assignment, and hence intended to defraud his creditors.

Appeals by plaintiff from special term judgments, in four actions tried together by consent, so far as the decrees sustain the validity of certain confessed judgments in favor, of the defendants Kenyon, Carter, Shepard and Walker.

Hamilton Wallis, for app’lt; Luden Oudin, for resp’t Kenyon • WarrenW.Foster, for resp’ts Carter, Shepard and Walker.

The omission to insert in the case on appeal any state'ment that it contains all the evidence prevents us from considering the interesting and important points made in the argument of the appellant against those portions of the judgments which are appealed from. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479. The appellant attacks the confessed judgments in favor of the several respondents on the ground that they, together with the general assignment to the defendant Bard, constituted a single instrument executed in pursuance of one scheme or device to withdraw the property of Clarke, Badcliffe & Co. from the reach of the creditors of that firm, and thereby hinder, delay

p. 1011

and defraud such, creditors. But the trial court refused to find this proposition, and on the contrary did find as matter of fact that the j udgments were not confessed for the purpose of hindering, delaying or defrauding creditors, but were in all respects fair and just. The single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment, does not of itself, standing alone, and irrespective of the other facts connected with the transaction, necessarily require the conclusion that the confessed judgment is a part of the assignment. All that White v. Cotzhausen, 129 N. S., 329, 344, decides is that under the proof in that case the conveyances, bill of sale, confession of judgment and other transfers made by the debtor, pursuant to an understanding previously reached, were in effect a preferential, assignment forbidden by the laws of Illinois. There also was an express finding that the confession of judgment was made without adequate consideration, and with intent to hinder, delay and defraud creditors, both of which propositions are negatived in the case at bar. We cannot say that the findings of fact made by the trial court are wholly without support in the- proof, nor can we inquire as to whether they are against the weight of evidence without being assured that all the evidence is before us. Our attention is called to the absence of the requisite certificate by one of the counsel for the respondents, and the omission may not be disregarded.

For these reasons the judgments should be affirmed, with costs of one appeal.

Van Brunt, P. J., and Barrett, J., concur.