Kemp v. Able Realty Maintenance Co. , 160 N.Y.S. 1055 ( 1916 )

Smith, J.:

Upon June 20, 1916, plaintiff recovered a verdict in the City Court after a trial against the defendant Able Realty Maintenance Co., Inc., for $829.45. Upon the same day this company sold to the other defendant above named all its interest in and to certain accounts to become due on July first. The defendant realty company at the time of the transfer was absolutely insolvent. The consideration claimed by the defendants to have passed for the transfer of these accounts was, first, the cancellation of a note owing by the realty company to the trading company for $300, and, second, $330.63 in cash. It thus appears at the most that value of $630.63 has been given for accounts worth $847.49 due in eleven days and all apparently good.

The judgment debtor has been examined in proceedings supplementary to execution, and upon that examination it appears that the only assets of the realty company on June twentieth were the several accounts assigned. It also appears that Mr. Charles Liebling, an attorney, who appeared and tried the ease of the plaintiff against the realty company, for the latter was the incorporator of the realty company and an officer of it. He was also a stockholder of the trading company, and its attorney. The complaint in the action now brought is to set aside as without" consideration and as fraudulent and void as to the plaintiff the assignment of the accounts above mentioned. A receiver is asked for, and it is also asked that the defendants above named be enjoined and restrained from in any manner collecting or disposing of the accounts so assigned or the moneys due thereupon.

The opposing affidavits deny the transfer in question was attended by fraud, by reason of full knowledge of all facts at the time by the transferee or its officers. This is of course a question of fact to be established upon the trial. It would seem, however, that under section 66 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61) this transfer was at least voidable in part so far as it was in payment of a note given by the trading company. That section provides: “No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, hen created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid.”

This contention of the plaintiff does not seem to be answered by the respondent. Moreover, a prima facie case would seem to be made for the setting aside of the transfer in its entirety by reason of fraud as indicated by an inadequate consideration and by the relationships of this attorney with the several corporations. No harm can come from the granting of this injunction until the trial of the action, and the order should be reversed, with ten dollars costs and disbursements, and the injunction granted upon the plaintiff’s giving an undertaking in the sum of $500.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted on terms stated in opinion. Order to be settled on notice.