Hyperlawhypertext legal database Perry v. Volkening 44 N.Y. Super. Ct. 332

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Perry v. Volkening

44 N.Y. Super. Ct. 332 12 Jones & S. 332 Court N.Y. Super. Ct. Decision date 1878-11-04 English

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ANDREW J. PERRY, Receiver, &c., Plaintiff and Respondent, v. HENRY VOLKENING, LUDWIG G. GLOECKNER, and others, Defendants and Appellants.

Headnote

I. Iryimction.
1. Phima facie case, fob, what is not.
(a) The preliminary injunction was obtained on the ground that an assignment made by Volkening was fraudulent as against -certain creditors represented by the recéiver. The fraudulent character of thfe assignment was sworn to on information and belief, no facts were stated from which the conclu-' sion could be drawn and the sources of information were not given ; and for all that appeared the judgment under which the receiver was appointed might have been recovered on cause of action which aróse subsequent 'to the
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assignment, not on contract. In addition to this there were two affidavits read on behalf of the defendants as to the bonafides of the assignment.
Held,
that a prima fade case for an injunction had not been-presented.
Before.Seeir and Freedman, JJ.
Decided November 4, 1878.
On April 8, 1876, Henry Yolkening deposited in the New York Life Insurance & Trust Company, $4,000, to the credit of a certain action to which he was defendant,, as. additional security on an appeal, taken by him.
The plaintiff in this action on February 9, 1878, obtained a preliminary injunction restraining defendants from demanding or receiving said money, and an order requiring them to show cause why they and all persons on their behalf, should not be restrained and enjoined-from demanding or receiving the said moneys during the pendency of this action, and why said Yolkening should not make an assignment of the same, or so much thereof as might be required to pay the judgments upon which the plaintiff - herein was appointed as receiver ; and for such other or further order as is proper:
On the return of the order to show cause, affidavits were read to the effect that said Yolkening, on June 3¿ 1876, assigned said sum to defendant, Ludwig Gr. G-loeckner, to secure a balance of $7,500 due him.
At special term an order was made “ that the said' order of February 9, 1878, granted on the application of the plaintiff, be continued in full force and effect,’7' and denying a motion made by defendant’s to vacate that order.
This appeal is from the special term order.
Nelson Smith, attorney, and of counsel, for appellant.
I. Fraud must be proved and cannot be pre
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sumed. This is elementary, and while it does not require citation of authority, we refer the court to Wharton orb Evidence, §§ 366, 1248, 1249, where the authorities are collected. ■
II. The belief or opinion or impression of a witness is no evidence of a fact (Butler v. Benson, 1 Barb. 526 ; Morehouse v. Mathews, 2 N. Y. 514 ; Teerpenning v. Corn Exchange Insurance Co., 43 Id. 279; Brewer v. Tucker, 13 Abb. Pr. 76 ; O’Reilly v. Freel, 37 How. Pr. 272 ; Exp. Robinson, 21 Wend. 672 ).
III. While there is no proof, fact or circumstance on the part of the plaintiff to show that the assignment from "Volkening to Gloeckner, of June 3, 1876, of his right to the §4,000 deposited in the trust company was fraudulent; there is proof, by the affidavits of both Volkening and Gloeckner, showing that that assignment was made in consideration of an indebtedness of §7,500 from Volkening to Gloeckner.
IV. Upon the proof as it stands, the judgments under which the plaintiff was1 appointed receiver were recovered June 27, 1876 ; there is no evidence to show that the debts upon which such judgments were recovered had been contracted on June 3, 1876, at the time of the assignment by Volkening to Gloeckner. It does not appear therefore that it is possible for Volkening to have intended any fraud upon such judgment creditors.
V. Subsequent creditors cannot impeach a prior assignment or transfer, unless it be shown that it was made with intent to defraud them, but we regard it as unnecessary to discuss these questions here, as there is no evidence that the assignment in question was made' to defraud anybody.
Edwin K. Dickerman, attorney, and D. J. Hew-land, of counsel, for respondent.
The injunction
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order was properly granted. All the reasons for an injunction ever being needed were here. The plaintiff showed a title prima facie to the property—no matter that others disputed the title—an action only could settle that. The case was urgent; the restraining power of the court was necessary, and necessary to be allowed at once, or the property in dispute—the subject of this action would have passed beyond reach, and the action—would have become fruitless. And it is submitted further, that the law allows the receiver in such a case as this, where it is admitted by the papers that the defendant, Volkening, has under his control this money (or that the same is on deposit on his behalf), which is the subject of this action, and which, as he claims, belongs to another party (Gfloeckner), to have an order that it be paid into, or deposited in court, with or without security, subject to the further direction of the court (New Code, § 717; People ex rel. Pease v. King, 9 How. Pr. 101 ). And the order made is quite equivalent to an order to pay moneys into court, for the papers show the moneys were already in court, or under its order, and this order was simply to allow them to remain on deposit where they were, so far as being interfered with by said defendants during the pendency of this action. •

The preliminary injunction was continued upon the bare allegation contained in the affidavit of the receiver, that he was informed and believed that Gloeckner’s claim, under the assignment made to him by Volkening, was fraudulent against certain creditors of Volkening, which he, as receiver, represented. Ho facts were stated from which this conclusion could be drawn, nor were’ the sources of his information, given.

The defendants, on the other hand, showed by two

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affidavits and in detail, that, the assignment was bona-, fide, and made for- a good and, valid consideration.

It. was also shown that the assignment was made June 3, 1876j that the judgments, against Volkening Were recovered in the marine court, June 22, 1876, and that plaintiff was appointed receiver October 10, 1876.,

But there was no allegation or proof that on June, 3, 1876, the causes of action, existed, for which the-' judgments were subsequently recovered, nor did, the? grounds of the recovery appear. For all that appeared the, judgments might have been recovered upon, causes,of action which arose subsequent to the. date of the assignment, and- not upon contract.

Upon the. whole case, therefore, the plaintiff had. failed to. present a prima facie case entitling him to an injunction on the ground of fraud against creditors, and in the exercise of a sound discretion the motion;, for. the-continuance of the injunction during the pern dency of the action, should, have- been denied.

The- soundness of the views here expressed has, i since the argument of the present appeal, been confirmed upon- the trial, of. the issues, which, resulted in the final establishment of the good faith and validity, of the-,assignment.

The order should be reversed, with costs.

Speir, J., concurred.

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