Otis v. Bertholf — 37 N.Y. St. Rep. 172

Majority

p. 172

Charles H. Otis, App’lt, v. Andrew T. Bertholf et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Assignment fob cbeditobs—Mobtgagbs—-Fraud.

In view of the conflict of decisions on the question and the fact that none are cited from the court of appeals, this court will not go so far as to hold that mortgages or transfers made immediately prior to an assignment for creditors are necessarily illegal without regard to the intent of the assignor.

Appeal from judgment of special term dismissing the complaint.

Action to set aside an assignment for creditors and also certain mortgages, or that said mortgages be declared preferences and reduced to the limit of preferences allowed by the statute.

It appeared that on the business day preceding the execution of the assignment, the assignor executed mortgages to each of his four children to secure moneys claimed to be due to them by reason of his having collected interest on a fund invested by the county treasurer for their benefit. The answers of the defendants denied that said mortgages were made with fraudulent intent or as paid of the same transaction with the assignment.

Charles G. Dill and Wm. Vanamee, for app’lt; Lewis F. Carr, for resp’ts, Josiah Otis et al.; Daniel Finn, for resp’ts, Bertholf et al.

The trial court refused to find that the mortgages were part of a single scheme of which the assignment was the

p. 173

•completion. There was a refusal to find that the assignor and assignee discussed the matter of the assignment before the mortgages were given. Refusal also to find that there was an attempt to evade the statuta

We cannot say these refusals are contrary to the evidence.

The judgment must, therefore, be affirmed, unless we go so far •as to hold that the transfers complained of were illegal without regard to the intent of the assignor.

The appellant takes this position, and abundant authorities are ■cited in its support. But the cases are not uniform, and none are cited from our highest court.

So much has been written upon the question and the views expressed are so diverse, that it is plain the doubts cannot be solved without the assistance of a higher court

We, therefore, see no advantage in pursuing the discussion, and are of the opinion that the judgment appealed from should be affirmed, without costs.

Dykman, J., concurs; Barnard, P. J., not sitting.