Downing v. Kelly , 49 Barb. 547 ( 1867 )

By the, Court, Geo. G. Barnard, J.

The defendant was entitled to have his sixth request charged substantially as requested.

An assignment of the property in question had been made by Samuel Baldwin to his son and clerk, and their notes taken for the consideration, without security, and upon credit, maturing between three months and three years. Samuel Baldwin was pressed by his debts, at the time of the sale, and his son had little property, at the time of the purchase, and his clerk, the other joint purchaser, was unable to meet his engagements. The goods consisted of a stock on hand in Hew York, and the son and clerk formed a new partnership, under the name of William S. Baldwin & Co. to continue the same business, with the old stock. Some of the notes so taken by Samuel Baldwin were given by him to his creditors. Under these facts, as disclosed by the evidence, the defendant asked the court to charge that if Samuel Baldwin made the transfer to William S. Baldwin & Co. and took their notes, payable respectively at different times, from three months to three years from date, with the view of placing his property in such a situation as that his creditors could not take it under legal process, and to compel his creditors to take these notes in payment of his debts, then this transfer in judgment of law was void. The court charged the proposition as requested, provided it was understood by the words, “ with a view of placing his property in such situation as that his creditors could not "take it under legal process,” means to hinder and delay creditors. Of course every conveyance and sale with intent to hinder, delay and defraud creditors is void as provided by the statute; but here the request was that the judge should charge the jury that a finding by them of certain facts would make out a legal hindering and delaying of creditors. ' Such facts could be found under the evidence. If so found they did make the sale void, and the jury should have been so instructed. A failing debtor has no right to interpose a logal title between his property and his debts, to compel his creditors to take notes drawn on time in payment of those debts. I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

[New York General Term, June 3, 1867.

The conclusion arrived at on this point rendering a new , trial necessary, I forbear to consider the question presented by the appeal upon the facts, or the other exceptions taken by the defendant.

Leonard, Clerke and George G. Barnard, Justices.]