Hyperlawhypertext legal database Kern v. Rachow 34 N.Y. Super. Ct. 239

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Kern v. Rachow

34 N.Y. Super. Ct. 239 2 Jones & S. 239 Court N.Y. Super. Ct. Decision date 1872-03-02 English

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p. 239
WILLIAM KERN and CONRAD HORNEL, Plaintiffs and Appellants, v. JOHN RACHOW, Defendant and Respondent.

Headnote

The plaintiffs’ affidavit shows that one month before the defendant’s note became due he sold his property, &c., worth two thousand dollars, to his brother-in-law, for five hundred dollars (payable some time afterwards), provided the business was good and he (brother-in-law) was successful; also, that defendant refused to show his book or give a satisfactory or full statement of his affairs.
The defendant did not explain or deny any of these verified statements, but moved upon the insufficiency of plaintiff’s affidavit, thus admitting the same to be true (see Wolfe 0. Brower, 5 Bolt. 604; Union Bank 0. Mott, 9 Alb. 108).
When a debtor, shortly before the maturity of his indebtedness, sells his property for less than its value, to a relative, on the credit of nearly a year, and only payable then on the condition that the business proved to be good, and the said relative was successful, a case arises where the original creditor is entitled to an order of arrest, or the remedy afforded under subdivision 6 of section 179 of the Code.
Held, That plaintiff was entitled to the order of arrest, and that the order vacating the same should be reversed.
Before McCunn, Curtis and Sedgwick, JJ.
Decided March 2, 1872.
Appeal by the plaintiff from an order made on June 14, 1871, granting a motion to vacate an order of arrest.
The action is to recover the .value of wood mouldings sold by the plaintiffs to the defendant, between March 1, 1870, and January 1, 1871, and for which defendant gave plaintiff his note, dated January 18, 1871, payable three months after date. An order of arrest was granted, on the ground that the defendant had disposed of his property with intent to defraud his creditors. The defendant moved at special term to vacate this order, and the motion, was granted. The
p. 240
plaintiff appeals to the- general term from this order vacating the order of arrest.
David McAdam, for the appellant.
Henry Wehle, for the respondent. ,

The plaintiff’s affidavit shows that about one month before the defendant’s note fell due, the defendant sold his stock, business and articles contained in his place of business,, which, with the outstanding claims, were worth two thousand dollars, to one Holstein, his brother-in-law, and who had failed several times, for the price of five hundred dollars, payable January 1,1872, provided the business was good and he was successful. That the defend-" ant has refused to show his books, or give any satisfactory or full statement of his affairs. That he owes other debts, and that his property has been attached.

The defendant moves to vacate the order of arrest on the plaintiff’s own affidavit, and does not explain or deny any of the matters alleged in the plaintiff’s affidavit. If these allegations are not met by a denial, on a motion to discharge from arrest, they must be taken to be true (Wolfe v. Brower, 5 Rob. 604 ; Union. Bank v. Mott, 9 Abb. 108 ).

When-a debtor, shortly before the maturity of his indebtedness, sells his property for less than its value, to a relative, to be paid for conditionally, under the circumstances and in the manner charged by the plaintiffs, and makes no denial or explanation, a case arises where the creditor is entitled to the remedy afforded under subdivision 5 of section 179 of the Code. A contrary view of it would tend to withhold the relief and protection designed by the framers of the law to be given to creditors, and serve substantially to promote the designs of knavish and fraudulent debtors.

The order appealed from should be reversed, with costs to the plaintiff.

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