Carver v. Barker — 56 N.Y. St. Rep. 38

Majority

p. 38

Elden R. Carver, Receiver, Resp’t, v. David F. Barker et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed December 8, 1893.)

Headnote

1. Fraudulent conveyance—Evidence—Declarations of grantor.

• In an action to set aside certain conveyances as fraudulent against creditors, the admissions and declarations of the grantor are competent evidence as against himself, he being a party defendant.

2. Same.

In such case it is not error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings, as the witness therein was at the trial and his evidence was available to defendants upon all the essential and material points raised during the trial.

Appeal from a judgment entered upon a decision made at the Broome special term, setting aside certain conveyances and transfers as fraudulent as against creditors of David F. Barker, who is the husband of Ida B. Barker.

Babcock, Sperry & Van Cleve, for app’lts; Cortland Wilber and A. D. Wales, for resp’t.

J.—After a perusal of the evidence bearing upon the vital issues in the case, the conclusion is reached that the trial court was warranted in finding a fraudulent intent on the part of the husband, with the knowledge thereof in the wife, to the extent stated in the findings of fact made by the trial judge, and the opinion delivered by the trial judge meets with our approval. This case differs quite essentially from Neuberger v. Keim, 134 N. Y., 36 ; 45 St. Rep., 394 .

(2) When Florence was upon the stand as a witness he was allowed to state a conversation held with David F. Barker, and upon objection being taken to portions of the evidence, the court observed: , “ You object to all his statements to this witness and I allow them for the purpose stated.” The court had theretofore observed “ I will receive it as tending to show a fraudulent intent on the part of David F. Barker.” A ruling was made when the witness Brown was upon the stand to the effect that the evidence would be received “ as bearing upon the question of what his interest was.” The ruling was repeated when the witness Ford was upon the stand; and when the plaintiff proposed to prove by Barker himself his situation and circumstances as to property, objections were stated by the defendants, and thereupon the court observed “ The objection is sustained as to Ida B. Barker, and evidence received as against David F. Barker as showing his statement.” We think no prejudicial error was committed by the court in the rulings adverted to. Manifestly the court intended to keep within the "rule as laid down by this court in Scofield v. Spaulding, 54 Hun, 523 ; 28 St. Rep., 108 , in which case it was held that the admissions or declarations of the grantor were competent evidence as against himself as he was a party defendant. We discover no intention on the part of the trial judge to hold that such declarations were

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admissible or binding upon the female defendant, or to make a ruling contrary to our holdings in the Spaulding case.

(3) Nor do we think it was error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings. The witness Barker was at the trial, and his evidence was available to the defendants upon all the essential and material points raised during the trial. Some other rulings were made during the trial to which attention has been given, and in them we find no error requiring us to disturb the conclusion reached at the special term.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.