Hyperlawhypertext legal database Arrowsmith v. O'Sullivan 44 N.Y. Super. Ct. 573

← Cases

Arrowsmith v. O'Sullivan

44 N.Y. Super. Ct. 573 12 Jones & S. 573 Court N.Y. Super. Ct. Decision date 1879-01-06 English

Delivered by Cubtis, J.,

Contents

Majority

p. 573
WILLIAM ARROWSMITH, Receiver, &c., Plaintiff and Respondent, v. TIMOTHY O’SULLIVAN, et al., Defendants and Appellants.

Headnote

Fraudulent conveyances.—Refusal to find.
One who sells goods to a party, after a conveyance by him, presumptively void as against creditors, but before actual change of possession, is a creditor, within the meaning of the statute.
Exceptions to the refusal of a judge or referee to pass upon questions of fact present no questions for review on appeal.
Before Curtis, Ch. J., and Freedman, J.
Decided January 6, 1879.
Appeal by the defendants O’Sullivan and wife, from a judgment adjudging certain sales of O’Sullivan as fraudulent and void.
The action is brought by the plaintiff as receiver, for the benefit of certain judgment creditors of the defendant Timothy O’ Sullivan, to set aside as fraudulent conveyances of real and personal estate, executed by him. to his wife’s brother j and by the latter conveyed to the defendant, Mary O’Sullivan, the wife of the judgment debtor.
p. 574
The said creditors sold defendant the goods, for the price of which their judgments were recovered, after the conveyances in question, but before actual change of possession thereunder.
Upon the settlement of the case, certain questions of fact were presented, and the court was requested by defendant to pass upon them, but refused, because they should not be in such form, and because they were immaterial, or referred to items of evidence rather than to conclusions of fact.
Henry A. Brann, attorney, and of counsel, for appellant,
Cited, as to conveyances, &c.: Babcock v. Ecklen, 24 N. Y. 630 ; Loeschigk v. Hatfield, 5 Rob. 29 ; Larremore v. Campbell, 60 Barb. 67 ; Lee v. Hunton, Hoff. Ch. 457.
Louis M. Doscher, attorney, Stephen B. Brague, of counsel, for respondents,
Cited, as to conveyances, &c.: 2 R. S. 136, §§ 5, 6; 1 Smith’s L. C. (7 ed.) 40; Tillson v. Terwilliger, 56 N. Y. 273 ; Fielder v. Day, 2 Sandf. 594 ; Savage v. Murphy, 8 Bosw. 75 ; Randall v. Parker, 3 Sandf. 69 ; McCarthy v. McQuade, 1 Sweeny, 387 . As to refusals to find: Code, § 1023; Van Slyke v. Hyatt, 46 N. Y. 264 ; Caswell v. Davis, 58 Id. 228; Gove v. Hammond, 48 How. 385 .

wrote for affirmance, with costs, holding propositions laid down in head-note.

Fbeedman, J., concurred.

Cases cited