p. 849Jacob Hurwitz, Resp’t, v. Callman Hurwitz et al., App’lts.(New York City Court, General Term,Headnote
Trial—Fraudulent conveyance.An action at law will lie to set aside a fraudulent conveyance of personal property
Abraham Gruber, for app’lté; Jacob Manheim, for resp’t.
The complaint alleges that the plaintiff on the 7th day of January, 1893, recovered a judgment against the defendant Hurwitz; that thereafter, and on the 18th day of January, 1893, execution was issued and returned unsatisfied. That on the 9th day of January, 1893, the defendant, Hurwitz, for a consideration of nine hundred dollars transferred certain personal property to the defendant Bouse; that the bill of sale was given without consideration and with the intent to hinder, delay, and defraud the plaintiff; that on the 9th day of January, 1893, the defendants wrongfully, unlawfully, maliciously, wilfully, and fraudulently combined and conspired together to hinder, delay, cheat, and defraud the plaintiff, and to prevent the collection of the judgment recovered by the plaintiff against the defendant Hurwitz, and to remove the property of the defendant and to so dispose of the same that the same might not be reached by said execution, and that as a result of such wrongful, wilful, malicious, and fraudulent acts of conspiracy on the part of the defendants the said personal property of the defendant Hurwitz was removed and disposed of by the defendants so that the same could not be reached by said execution, and that the plaintiff was ■damaged in the sum of $617.90. The answer of the defendant
p. 850Rouse is a general denial and alleges that the bill of sale was given for a valuable consideration and in good faith. The answer of the defendant Hurwitz is in substance a general denial. On the trial, both at the opening as well as at the conclusion of plaintiff’s case, defendant moved to dismiss the complaint on the ground: That the action should have been brought in equity to set aside the bill of sale from the defendant Hurwitz to Rouse, and not in law as this action is brought, which motions were denied and exceptions duly taken. We think the trial justice properly denied the motions and correctly stated the law in his charge to the jury. See
Quimby v.
Strauss, 90 N. Y. 664 . The case df
Braem v.
The Merchants' National Bank, 127 N. Y. 509 ; 40 St. Rep. 827 , to which the appellants' counsel has referred, has no application to this case. In that case the plaintiff recovered a judgment against a manufacturing company, on the same day the defendant obtained a judgment against the same company upon an offer and acceptance. In an action against the defendant for damages for fraud in obtaining the judgment the court properly held that it was a subject of equitable jurisdiction as to who was entitled to the fund arising from the sale under the several executions. In this case no such question arises. We think, therefore, that the judgment must be affirmed, with costs.
Fitzsimons, P. J., and Conlan, J., concur.