Hoffman v. Susemihl , 44 N.Y.S. 52 ( 1897 )

Ingraham, J.:

The complaint alleges that certain transfers of book accounts by the defendant Susemihl to the other defendants were made with the intent to hinder, delay and defraud the creditors of the said Susemihl. These allegations are denied, and the trial court has found that such transfers were not made with such intent. This was a question of fact. The evidence relied upon to prove such fraudulent arrangement between the assignor and the assignees of these claims was the examination of the judgment debtor in the proceeding supplementary to execution. The assignees -were not present or parties to that proceeding. The examination was made long after the transfer. Both assignees swore positively that no such agreement was made as is alleged in the complaint; and the assignor also swore that no such agreement was made, and that he made a mistake, which is explained, in the testimony given in the supplementary proceedings. The learned judge believed this testimony of the defendants. As a matter of fact it is extremely doubtful whether there was any testimony that would justify a finding that any such agreement was made or that the transfers were made with such fraudulent intent. The court, however, has found that no such agreement was made, and that finding is amply sustained by the evidence. Upon the evidence of the defendants it is quite clear that the transfer of these book accounts was made in payment of the debt of the judgment debtor; that such transferees were actual Iona fide creditors of the judgment debtor, and that these plaintiffs at the time had under execution levied upon all of the personal property of the debtor. There was certainly nothing fraudulent in the debtor’s paying to certain of his other creditors the portion of his property that these plaintiffs had not been able to obtain a lien on for the satisfaction of their judgment. Susemilil swears expressly that “ when I made up my mind to turn over these bills to them in payment of their accounts, to the Mott Iron Works and to the Henry Huber Co., I turned them all over to them in payment of their bills against me. The hills which Mr. Mott’s firm took were selected by two of us. Myself and the bookkeeper.” Mr. Gleason, who represented the Mott Iron Works, and Mr. Tiedeman, representing the Henry Huber Company, both swore that the assignment was absolute and was in payment of the debts due from tlie judgment debtor to these creditors. Tlie mere fact that, subsequently, these creditors were willing to share with the other creditors upon condition that the plaintiffs would release the lien of their executions so that all would share alike, is not conclusive that the defendant creditors took the transfer of the book accounts under a secret trust, or in any other manner than is testified to. The evidence shows that the amount collected from these assigned book accounts was very much less than the amount due to the creditors. It is now settled in this State that a creditor has a right to transfer to any particular debtor property sufficient to pay his debt, even though he thereby places it out of his power to pay his other creditors; that, as long as the object is simply to pay a bona ficle debt, and that is the only result accomplished, the transaction is not fraudulent as to other creditors. (See Maass v. Falk, 146 N. Y. 41, and cases there cited.)

We also think that the answer of the defendants was sufficient to put in issue the allegations of the complaint. A statement in an answer specifically denying a particular numbered paragraph of the complaint is a good denial of that paragraph; and the mere fact that the answer, after specifying the number of the paragraph which it is intended to deny, repeats the allegations of the paragraph, does not make it any the less a denial of the allegations contained therein.

As to the amendment allowed to the answer of one of the defendants upon the trial, we think it was clearly within the discretion of the trial court, and that the plaintiffs could not have been surprised or injured in any way by such amendment, as the answers of the other defendants put the allegations of the complaint in issue, and the plaintiffs were, therefore, compelled to prove such allegations.

Some complaint seems to have been made as to the admission in evidence by the court of the examination of the defendant Susemihl in supplementary proceedings as evidence against Susemihl only, and not against the other defendants. The examination is before the court, however, and we are satified that, assuming it to have been admitted as against the other defendants as well as against Susemihl, the result would not have been different, as the clear preponderance of evidence was in favor of the defendants. Upon the whole case, we think that no'error was committed, and that the judgment below was clearly right and should he affirmed, with costs.

Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.