Kell v. Isaacs — 35 N.Y. St. Rep. 939

Majority

p. 939

Robert Kell, App’lt, v. Solomon Isaacs et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Fbatjdulent conveyance.

Proof that deposits in some respects coincident with the amounts paid for a conveyance were afterwards made by the grantor in the accounts of the firm of which the grantee was a member is not sufiicient to establish a repayment of the purchase price by the grantor, as against positive testimony of the grantor and grantee to the contrary.

Appeal from a judgment dismissing the complaint on trial at the special term.

Blumenstiel & Hirsch, for app’lt; Benno Loewy, for resp’ts.

The plaintiff is a judgment creditor of the defendant Solomon Isaacs, who on the 8th day of October, 1888, conveyed premises situated on Delancey street in the city of Hew York to the defendant Leopold S. Weiner, for the consideration of $22,000, subject to two mortgages amounting to $14,000. This conveyance was alleged to have been fraudulent as to the creditors of Isaacs on the ground that it was no more than a device to place the title in Weiner, and that the latter pursuant to that understanding had indirectly received back from Isaacs the amount of cash paid to him to complete the purchase. Proof was given of deposits afterwards made in the accounts of the firm of which Weiner was a member and of another member of the firm in some respects coincident with the amounts paid by the defendant Weiner to Isaacs on the purchase price. But. they were certainly not so identical in either amounts or dates as to support the conclusion that they were portions of the moneys in this manner paid to Isaacs. And that there was no identity between the amounts received and the amounts deposited was the positive testimony of

p. 940

Isaacs, who was a witness for the plaintiff on the trial. For he testified that no part of the money received was returned to or for Weiner, but it was all used by himself, chiefly, if not wholly, in. the payment of debts. And the defendant Weiner by his evidence, given' also as a witness for the plaintiff, was that the purchase was a bona fide transaction on his part and not affected by any intent to defraud creditors. And that given by the bookkeeper of the firm also tended to avoid the charge that the purchase was fictitious or fraudulent.

The plaintiff’s case was unsupported by proof and for that reason it failed. . There is no evidence whatever which would justify any different view to be now taken of it than that which prevailed at the trial. And the judgment should be affirmed, with costs.

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