Majority
p. 916John Flannery, Resp’t, v. J. Wesley Van Tassell, App’lt. (Supreme Court, General Term, Second Department, Filed December 14, 1891.)
Headnote
-Fraudulent conveyance—Consideration—Change of possession.Plaintiff was surety on the bond of one M. as village treasurer and indorser on his notes, and M. also owed him rent. In consideration of his agreeing to pay said notes and a shortage in the treasurer's accounts, M. sold to plaintiff his stock of goods, horses and wagons. Plaintiff went to the store and took possession, discharging some of the clerks and rehiring others, and two days thereafter defendant levied on the goods under an attachment against M. Held, that there was a good consideration for the sale, and sufficient evidence of a change of possession.
Appeal from judgment in favor of plaintiff for $1,026.04, ■damages and costs.
This action is brought by the plaintiff to recover of the defendant, as sheriff of Dutchess county, the value of certain goods ’taken from the plaintiff by the defendant.
p. 917
On the 12th of March, 1890, one Edward McManus was the owner and in possession of the goods in question.
Edward McManus was on the 12th of March, 1890, and had been for more than a year prior thereto, the treasurer of the village of Fishkill Landing. Said McManus gave his bond for $10,000, with John Flannery as his surety, for the faithful performance of his duties as such treasurer. On the 12th of March, 1890, Mc-Manus was short in his account with said village, in the sum of $1,569.38.
John Flannery was also the endorser on notes of said McManus to the amount of several hundred dollars. McManus was also-indebted to Flannery at that time in the sum of $90 for rent of barn.
On the morning of the 12th day of March, 1890, McManus sold his stock of groceries in his store, horses, wagons and harness, and a house and lot, to said John Flannery, for which property said Flannery was to pay McManus’ indebtedness to the village of Fishkill Landing as treasurer, to pay the notes endorsed by said Flannery, and the sum due him for rent of barn.
The plaintiff took possession of the personal property the same morning, discharged one clerk and the bookkeeper, and continued in the actual possession thereof until the 14th day of March, 1890, when the defendant, as sheriff, took possession of said property by virtue of an attachment in the supreme court on behalf of a creditor of said McManus.
The plaintiff paid McManus’ shortage to the village, $1,569.38, .and the notes of McManus endorsed by him.
There was no equity in the house and lot conveyed to Flannery by McManus. Its value was about $2,000. It was mortgaged for $1,950, with interest due thereon.
The value of the personal property was about $1,200.
Grant B. Taybr (Howard Thornton, of counsel), for app’lt; H. H. Hustis, for resp’t.
There was ample evidence of an actual change of possession of the chattel, and it appeared that a good consideration existed for the transfer.
Plaintiff has actually paid out upwards of $1,500 on account of his liability for McManus.
Whether he could be held to account for any excess of the proceeds of the goods over the debt is not now important, for the recovery is far below the consideration plaintiff was compelled to pay. There are no valid exceptions and we are satisfied with the verdict.
Judgment affirmed, with costs.
Dtkman, J., concurs; Barnard, P. J., not sitting.