Pierce v. Mayer

In an action brought by the attorney-gen eral to dissolve the corporation “ Mark Mayer ” for insolvency and illegal .acts, the plaintiff was appointed receiver, and he brought this action to set aside a number of judgments simultaneously obtained by the appellants, upon two grounds: First, that the corporation and the other defendants had entered into a conspiracy for the purpose of obtaining a preference in violation of the statute in such case made and provided ; and, secondly, that said judgments were fraudulent in fact, having been obtained upon claims having no legal existence, or being largely in excess of the amounts actually due.

Upon the first ground the question was carefully examined' in the case of Dickson v. Mayer, 35 N. Y. State Rep., 482, in which case no proof was offered to substantiate any claim that the indebtedness, upon which the judgments are entered, was fictitious, and, therefore, the conclusion reached in that case is not binding in the decision of the case at bar.

Without, however, discussing that question again, it is sufficient for the purposes of this appeal briefly to consider the second ground upon which this action is predicated, and the injunction order based, viz., fraud in fact upon the part of the defendants in obtaining the judgments upon claims wholly or in part fictitious.

It appears from the papers that all the moneys which it is ■claimed Dessa Mayer loaned to the corporation, amounting to about $4,000, were loaned in the months of March, April, May and June, 1890. It is sworn to in the affidavit of Whipple, made on the 25th of August, 1890, that in July, 1890, he saw the books of the corporation in Brooklyn, and that there was not at that

It may be claimed that by Whipple’s affidavit sworn to September 9, 1890, he has qualified the foregoing statement. But it will be seen upon an examination of his affidavit that he has not in any manner retracted or qualified that which he asserted in his affidavit of August. In his affidavit sworn to in September he states as follows : that in said affidavit (referring to the affidavit sworn to in August), he stated that when he last saw said books of said company the only item to the credit of Mrs. Mayer therein was a slip or memorandum showing $400 to her credit; and that by said allegation it was not his intention to convey the idea that said corporation was only indebted to Mrs. Mayer for $400, but that said books, posted only to March 8, 1890, simply showed an indebtedness to that amount.

In a prior portion of the affidavit he states that he only posted said books up to March 8, 1890, and that the last time he saw said books in July, 1890, they were only posted up to March 8, 1890, and were in Brooklyn.

This second affidavit may be entirely true, and yet be not at all inconsistent with the affidavit made in August, because in that affidavit he says that the cash book did not contain any entry showing any indebtedness to Mrs. Mayer, and in his affidavit of September he says that the posted books did not show any such indebtedness.

It is clear that if these moneys had been loaned by Mrs. Mayer at the date stated they would have been entered in the cash book, and the evidence derived from the affidavits of the affiant Whipple is that in July, 1890, a month after the last advance, and four months after the first, no entry was made in the books of any such loan. This necessarily casts grave suspicion upon the good faith of the claim now made by Mrs. Mayer for these large advances.

It may be said that this evidence in respect to the claim of Mrs. Mayer does not affect the good faith of the claim of Kaufman, but it appears from the manner in which the judgments were entered in this "case and the use to which the judgments of both parties were put, viz.: to coerce the other creditors into a settlement, that these two parties were acting in concert.

For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J., concur.