Lippman v. Shapiro — 50 N.Y. Super. Ct. 367

Majority

p. 367

GUSTAV LIPPMAN, et al., Respondents, v. SAMUEL SHAPIRO, Appellant.

Headnote

Arrest—subd. 1, § 550 Code Giv. Proc.~ Action to recover chattels.—Value representations.

In an action to recover the possession of chattels, where it appeared upon an application for an order of arrest under Code Civ. Pro. § 550, subd. 1, that plaintiffs had been induced by the false and wrongful representations of defendant to sell him the chattels in question, etc.; that he soon thereafter made an assignment for the benefit of creditors, and that the sheriff was unable to find the chattels.

Held, as defendant knew the chattels were obtained by fraud and should be paid for or returned, that whether he disposed of them before the assignment or concealed them from the assignee, which is also a concealment as to plaintiff, it is in furtherance of the original fraud and tends to deprive plaintiff of the benefit of his chattels, and it will be inferred that such was defendant’s intent; that a like intent and effect will be presumed, if the chattels were delivered to the assignee, unless it appears that the assignment was made in such manner that the assignee could not deem it the duty of his trust to oppose a reclamation thereof by plaintiff.

Viirthe-r held, that an intent to put the property beyond the reach of its owner by any act, the other elements appearing, will justify the order of arrest, though the fraudulent actor .may not have contemplated an action at law to recover the specific property.

p. 368

Decided June 16, 1884.

Before Sedgwick, Ch. J., and Ingraham, J.

Appeal by defendant from order denying motion to set aside order of arrest of defendant.

The action was brought to recover the possession of certain chattels from defendant. The papers upon which the order of arrest was granted showed that the plaintiffs were doing business as clothiers in the city of New York, and that before and up to the time of the assignment hereafter mentioned, the defendant was also doing business in said city, as a retail clothier ; that between September 6, and December 3, 1883, by means of fraud and false representations, as to his credit and solvency, &c., defendant had obtained possession of and wrongfully detained from the plaintiffs personal property consisting of clothing.

That on December 12, 1883, defendant made an assignment for the benefit of creditors. Plaintiffs’ affidavit also set forth that the defendant had “removed and disposed of said property with the intent to put the property beyond their reach, and with the like intent to deprive them of the benefit thereof, and with the intent that the same should not be found or taken by the sheriff herein,” and that defendant had refused to return the property to the sheriff.

A certificate of the sheriff was also set forth, as follows :

"“ I further certify that before the coming of this writ to me the property within described had been eloigned, concealed, removed or disposed of so that I could not find or take the same, as by the said requisition I am commanded.”

The motion to vacate was made on the papers on which .the order of arrest was granted, and was' denied upon the ground that it appeared that the defendant had disposed of the property with the intent to deprive the plaintiff of the benefit thereof.

Blumensteil & Hirsch for appellant.

As presenting a

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case of eloignment, it is seriously defective: 1st. The action is brought against the assignor, when upon the face of the affidavit it appears that, prior to the commencement of the action, the defendant had made a general assignment. The property would thus pass to the assignee, and could not be taken under the requisition in this action, without making the assignee a party. 2d. It is not averred that the property sought to be recovered is not in the possession of the assignee, and hence non constat, that if the assignee had been made a party it could not have been taken under the writ properly issued, and therefore it does not appear that it was disposed so that “it could not be taken by the sheriff, and with intent to deprive the plaintiff of the benefit thereof, &c.”

The assignee in cases of this kind, not being a Toonajide purchaser, takes the property subject to all the equities existing against the defendant, and the same proof which would enable the plaintiff to recover of the debtor, would suffice in an action against his general assignee.

The certificate of the sheriff does not strengthen the case. He simply certifies that it was not in defendant’s possession, and that it had been removed, &c., all of which would ,be true if it was in the possession of the assignee. There is no actual concealment shown in any of the affidavits on this motion.

The cases are clear, that to authorize an order of arrest under this subdivision, it must appear that the property has been removed after suit brought, or if disposed of before suit, it was done to defeat expected process (Watson v. McGuire, 2 Daly, 219 ; Pike v. Lent, 4 Sand. 650; Roberts v. Randall, 3 Sand. 707; Mulvay v. Davison, 8 How. 111 ). Or that defendant had sold the property with intent to perfect the fraud, and put it beyond the reach of the owner (Barnett v. Selling, 70 N. Y. 492 ). An assignment of the property to an assignee for the benefit of creditors is not such a sale as puts it beyond the reach of the owner, for in such a case, as before stated, the assignee takes no better title than the assignor had.

p. 370

Louis Levy and C. P. Hoffman, for respondents.

The motion was denied below, on the ground that the proof showed that the defendant had disposed of the goods, which the sheriff could not find, with intent to deprive the plaintiff of the benefit thereof. The action was for the recovery of personal property, and the order of arrest was granted under subd. 1, § 550, of the Code of Civil Procedure.

There were enough facts to show that the- plaintiffs had been induced by the false representations of the defendant to sell him the goods. The sheriff was unable to find these goods. I am not inclined to give any force to the fact of the sheriff’s certificate, that declares that before the coming of the writ to him, the property had been eloigned, concealed, removed, or disposed of, so that he could not find or take the same. That is the statement of a judgment on his part, which a judge should make, upon facts that would show its correctness.

Barnett v. Selling ( 70 N. Y. 492 ), must be followed. The opiniepn says that an intent to put the property beyond the reach of its owner, by any act, will, the other elements appearing in the case, authorize the order, although the fraudulent actor may net contemplate an action at law to recover the specific property. The cited case justly gives importance to the fact that a fraudulent purchaser is affected by his knowledge, that the circumstances justify a reclamation of the chattels from him.

In the present case, the defendant knew that the chattels had been fraudulently obtained by him and that he should either pay for them or return them. Instead of that, he disposed of them before the assignment, or concealed them from the assignee, which would be really a concealment from all persons, among them these plaintiffs, or he delivered possession of them to the assignee. Any of these things would be in furtherance of the original fraud, and would tend to deprive the plaintiffs of the benefit of them. The inference would be, that such was the intention

p. 371

of the defendant. Because, however, the assignee not be: ing a bona fide purchaser, cannot withhold the goods from the plaintiffs, it is argued that if the goods are in possession of the assignee, the assignment cannot be'deemed to show that the defendant had an intent by it, to deprive the owner of the benefit of the goods. The inference is to the contrary, unless it should appear, and it does not, that the defendant made the assignment in such manner that the assignee would not claim the goods and not believe it to be the duty of his trust to oppose the plaintiffs’ reclamation.

The existence of the facts, that have been referred to, made aprima facie case which the defendant was called upon to explain. Indeed, the absence of explanation strengthened the inferences unfavorable to the defendant.

I, therefore, am of opinion that the order should be affirmed, with $10 costs, and disbursements to be taxed.

Ingraham, J., concurred.

Cases cited

Barnett v. Selling 70 N. Y. 492 N.Y. 1877-09-25 p. 369, p. 370