Ward v. Petrie

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 sustaiji the finding that the mortgage 'was fraudulent as t'o 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; Syracuse Chilled Plow Co. v. Wing, 85 id. 421.) We think the plaintiff, as receiver, was in position to attack the mortgage. (Code Civ. Proc. §2469; Alden v. Clark, 86 Hun, 357 ; Stephens v. Perrine, 143 N. Y. 482 .) The action was to recover damages sustained by fraud. (Buffalo Lub. 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 ; Mandeville v. Avery, 124 N. Y. 377 ; Otis v. Crouch, 89 Hun, 551 .) 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.

Martin and Merwin, JJ., concurred.