Ward v. Petrie — 72 N.Y. St. Rep. 313

Majority

p. 313

Peter A. Ward, as Receiver, etc., Resp’t, v. Norman Petrie et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed December 26, 1895.)

Headnote

Feaudulent conveyances—Hindering collection oe debt.

An action by a receiver in supplementary proceedings to recover damages sustained by fraud may be maintained against a mortgagor and mortgagee, where the mortgage was executed to hinder a collection of a debt of the mortgagor.

Appeal from a judgment in favor of plaintiff, and from an order denying a new trial.

Wayland F. Ford, for app’lts; Rogers & Atwell, for resp’ts.

—The jury were instructed that, unless fraudulent intent was found to exist on the part of both defendants, the mortgage should be found to be valid.' The evidence is sufficient to sustain the finding that the mortgage was fraudulent as to both mortgagor and mortgagee, and made to hinder and delay the collection of the debt represented by the plaintiff, as receiver. Billings v. Russell, 101 N. Y. 227 ; Baldwin v. Short, 125 id. 553 ; 36 St. Rep. 138 ; Plow Co. v. Wing, 85 N. Y. 421 . We think the plaintiff, as receiver, was in position to attack the mortgage. Code, § 2649 ; Alden v. Clark, 86 Hun, 357 ; 67 St. Rep. l54 ; Stephens v. Perrine, 143 N. Y. 482 ; 62 St. Rep. 843 . The action w;as to recover damages sustained by- fraud. Oil Co. v. Everest, 30 Hun, 586 ; Quinby v. Strauss, 90 N. Y. 664 ; Murtha v. Curley, id. 372 ; Pilcher v. Levino, 80 Hun, 399 ; 62 St. Rep. 42 ; Mandeville v. Avery, 124 N. Y. 377 ; 36 St. Rep. 338 . We think none of the exceptions taken upon the trial present an error requiring us to interfere with the verdict.

Judgment and order affirmed, with costs.

.All concur.

Cases cited

Syracuse Chilled Plow Co. v. Wing 85 N. Y. 421 N.Y. 1881-05-31 p. 313
Quinby v. Strauss 90 N. Y. 664 N.Y. 1882-11-21 p. 313