Thalheimer v. Klapetsky — 36 N.Y. St. Rep. 116

Majority

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Gates Thalheimer, App’lt, v. Feliz C. Klapetsky et al., Resp’ts.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Witness—Impeachment.

A party who calls his opponent as a witness thereby vouches for his credibility, and cannot thereafter impeach him.

2. Assignment fob cbeditobs—Judgments by confession.

An assignment for the benefit of creditors is not invalidated by judgments previously confessed by the assignors, where such confessions were not made or obtained in contemplation of or as a part of a scheme resulting in the assignment to evade the statute, and the assignment was made in good faith

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Appeal from a judgment entered in Onondaga county upon a decision made after a trial at special term in that county, dismissing the plaintiff’s complaint upon the merits. Plaintiff is a judgment creditor, with an execution returned unsatisfied, of Feliz C. Klapetsky and Bernard Klapetsky, who were copartners in business in Syracuse from September 26, 1885, down to the 19th of August, 1889, when they made a general assignment to the defendant Ohryst. On the 17th of August, 1889, the judgment debtors confessed two several judgments, one to John Klapetsky, and the other to Joseph J. Klapetsky. It is found by the trial judge that when the judgments were obtained on August 17, 1889, “ there was no mention or suggestion of a general assignment for the benefit of creditors, and that said Feliz C. and Bernard Klapetslcy, or either of them, did not at that time contemplate the making of a general assignment, andxthat said judgments were not confessed by said judgment debtors nor obtained by said judgment creditors with any intent on their'part, or the part of either of them, to' evade the statute, of 1887; in- regard to preferences; but that the object .and intent of obtáiniñg said judgments, and each of them, was to secure and pay an; honest indebtedness of said judgment debtors." .That the 'attorney fól the parties obtaining said judgments was one Charles H. Sedgwick, of Syracuse, FT. Y., and that the first suggestion of a gen,eral''assignment made by or to said judgment 'debtors was on August 19, the day of the execution, of the assignment,, 'and', was by advice of Mr. Baldwin, who had that day been retained by, said judgment debtors."

The trial court also further found: i‘ That the assignment for the benefit of creditors above referred' to was made in good faith, and for an honest purpose, and without any intent on the part of the said assignors or assignee to hinder, cheat, delay or defraud the plaintiff or any other creditor.”

The trial judge also further found: “ That the plaintiff in this action, by his proofs upon the trial, failed to establish any cause of action against the defendants, or either of them, and that the defendants are entitled to a dismissal of the plaintiff’s complaint, with costs.”

Hogan & Stern, for app’lt; Baldwin & Kennedy, for resp’ts.

Principally upon the evidence of one of the assignors called as a witness by the plaintiff (as well as his testimony given in supplementary proceedings), the plaintiff relied at the trial to sustain the allegations of the complaint which in effect charge that the confessions of judgment made on the 17th of August, 1889, were part of a scheme on the part of the assignors to give preferences in violation of chapter 503 of the Laws of 1887. Inasmuch as the plaintiff called Feliz Klapetzky as a witness, he thereby vouched to the court that he was worthy of credence, and the plaintiff was not at liberty to impeach the witness. In Hunt v. Fish, 4 Barb., 324 , it was held that “ a party cannot be allowed to insist that his own witness is not to be believed.” In speaking of such a witness, Gridley, J., says, page 331, “The

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witness was doubtless strongly in the interest of the plaintiff, and had he been called by the plaintiff, his testimony would have been subject to much just criticism. The defendants have, however, made him their own witness, and must take his testimony as he has given it. Had the defendants not called this witness, they might have argued that the referee should have disregarded-his testimony, if it had been inconsistent or improbable. But they cannot now do this. He has sworn that Mr. Hunt was a Iona fide holder, and the defendants cannot he heard to insist that he is not to be believed. They had the right, if surprised by his testimony, to show by other witnesses that the facts were otherwise; but they could not impeach their own witness, either directly or indirectly.”

After reading the testimony found in the appeal book, and carefully considering the same in the light of the ingenious and extensive criticisms made thereon by the learned counsel for the appellants, we are not inclined to disturb the findings of fact made by the trial judge based, upon the evidence taken before him. In Spelman v. Freedman, 54 Hun, 414 ; 27 N. Y. State Rep., 392, in considering the effect of the general assignment act, it was said by Brady, J.: “It was evidently the intention of the legislature that if a general assignment for the benefit of creditors was contemplated, it should embrace the disposition of all the debtor’s property at the time of the formation of the determination to make the assignment, and that it should not, in its broad and general effects, be anticipated by a partial and preferential distribution of his estate. The right to the preference, in other words, must be exercised in the assignment, and not otherwise.”

The same court in deciding Stein v. Levy, 55 Hun, 381 ; 29 N. Y. State Rep., 87, seems to have been divided as to the effect of that decision. A majority of the court, however, seems' to be of the opinion that the assignment act “ had no application to the case of a judgment and the execution levied thereunder, and related only to cases of general assignment. That the provisions of said act only applied to the confessions of judgment where they constituted a part and parcel of a scheme resulting in a general assignment, whereby all the debtor’s property was devoted to the payment of his debts.” See also Berger v. Varrelmann, 34 N. Y. State Rep., 911.

In Wilcox v. Payne, 19 N. Y. State Rep., 893, it was held, that “Judgments confessed immediately prior to a general assignment, although obnoxious to the statute, are not sufficient to render an assignment void.” However, as there is no finding of fact in this case that the confessions of judgment “ constituted a part and parcel of a scheme resulting in a general assignment whereby all the debtor’s property was devoted to the payment of his -debts,” we are of the opinion that we need not consider-and determine what acts, transfers and liens created, or judgments given by an assignor prior in point of time to the execution of a general assignment, will be declared void, or will render an assignment subsequently made invalid.

(2.) We have looked at the several rulings made upon the trial to which exceptions were taken and we are of the opinion that

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they present no such error as to warrant us in disturbing the findings of fact made.

Judgment affirmed, with costs.

As the court, upon sufficient evidence, has found that the judgments in question were not confessed or obtained in contemplation of making a general assignment, nor with any intent to evade the statute of 1887, and that the assignment was made in good faith, I am of the opinion that the confessions of judgment did not render the assignment void. As there were no other errors that would justify a reversal I think the judgment should be affirmed.

Merwtn, J., concurs.