Kidd v. Phillips — 45 N.Y. Super. Ct. 633

Majority

p. 633

GEORGE W. KIDD, et al., Plaintiffs and Appellants, v. TROY PHILLIPS, et al., Defendants and Respondents.

Headnote

I. Judgment.—Practice.

1. Entry on irregularity in.

(a) An entry within four days from the filing of the decision (the cause having been tried at special term, before a judge without a jury) and service on the opposite attorney of a copy thereof, with notice of its filing, is irregular.

(1) Irregularity in this respect, when not cause nor SETTING ASIDE THE JUDGMENT.

1. Not prejudiced. When the party against whom the judgment was entered lias not been prejudiced thereby, it will not be set aside for such irregularity.

p. 634

II. Fraudulent conveyances.

1. Authorities bearing o.n, cited by counsel.

Before Curtis, Ch. J., and Sedgwick, J.

Decided November 11, 1879.

This action was brought to set aside a conveyance as fraudulent and void as against creditors. Judgment was rendered against plaintiffs.

The action was tried before the court without a jury. Judgment was entered before the expiration of four days from the filing of the decision, and the service on plaintiffs’ attorney of a copy thereof, and notice of the filing. Plaintiffs moved to set aside the judgment for irregularity in this respect, which was denied, on the admission that plaintiffs had in no wise been prejudiced. Plaintiffs appealed from the judgment, and from the order denying the motion to set it aside.

Thomas J. Tilney, attorney, and of counsel, for appellant, on the appeal from the order, cited:

Marvin v. Marvin, decided by the court of appeals, November 19, 1878, reported in 7 Weekly Digest, 370. On the appeal from the judgment, he cited, to the point that a fraudulent conveyance cannot be saved by the fact that it was given for an honest debt: Drury v. Cross, 7 Wall. 302 ; Johnson v. Whitwell, 24 Mass. 74 ; Graham v . Furber, 14 Com. B. 419; Devries v. Phillips, 63 N. C. 53 ; Pulliam v. Newberry, 41 Ala. 168 ; Goodhue v. Berrien, 2 Sandf. Ch. 631 ; Gans v. Renshaw, 2 Penn. 36 ; Rutland v. Snow, 20 Conn. 27 ; Waterbury v. Sturtevant, 18 Wend. 353 ; Solomon v. Moral, 53 How. Pr. 342 ; 24 N. Y. 623 ; 7 Wend. 436 ; 58 Barb. 625 . And to the point that fraud is commonly made out, not by direct proof, but by circumstantial evi

p. 635

deuce, he cited: Wehrting v. Sturtevant, 18 Wend. 361 .

Otto Horwitz and E. M. Cohen, of counsel, for respondents, on the appeal from the order, cited:

Valentine v. Haydecker, 8 Weekly Digest, 478. And on the appeal from the judgment he cited : Laidlaw v. Gilimore, 47 How. Pr. 67 , affirmed by court of appeals, 1874; Newman v. Cardell, 43 Barb. 448 ; Loeschick v. Hatfield, 4 Abb. Pr. N. S. 210; Read v. Livingston, 3 Johns. Ch. 481 ; 5 Cow. 67 ; 2 R. S. 137, § 4; 10 N. Y. 190 ; Id. 227 ; Carpenter v. Curren, 42 Barb. 300 ; Waterbury v. Sturtevant, 18 Wend. 352 ; Auburn Exchange Bank v. Fitch, 48 Barb. 344 .

Judgment and order appealed from affirmed, with costs.

Cases cited

Miller v. Adsit 18 Wend. 353 N.Y. Sup. Ct. p. 634
Salomon v. Moral 53 How. Pr. 342 N.Y.C.P. p. 634
Babcock v. Eckler 24 N. Y. 623 N.Y. p. 634
Jackson, ex rel. Bigelow, v. Timmerman 7 Wend. 436 N.Y. Sup. Ct. p. 634
Bennett v. McGuire 58 Barb. 625 N.Y. Sup. Ct. 1871-04-04 p. 634
Laidlaw v. Gilmore 47 How. Pr. 67 N.Y.C.P. p. 635
Newman v. Cordell 43 Barb. 448 N.Y. Sup. Ct. 1864-12-05 p. 635
Reade v. Livingston 3 Johns. Ch. 481 N.Y. Ch. 1818-09-28 p. 635
Jackson ex dem. Wyck v. Seward 5 Cow. 67 N.Y. Sup. Ct. p. 635
Carpenter v. Muren 42 Barb. 300 N.Y. Gen. Term 1864-05-09 p. 635
Auburn Exchange Bank v. Fitch 48 Barb. 344 N.Y. Sup. Ct. 1867-03-04 p. 635