Wyatt v. Brooks ( 1886 )

Davis, P. J.

This is an action in the nature of a creditor’s bill to set aside an assignment made by the defendants Silberstein and Shovelsohn to the defendant Brooks on the alleged grounds that the assignment was fraudulent and void on its face, and improper and illegal in form, and was made and executed with intent to hinder, delay and defraud the creditors of the assignors. Amongst the property assigned was a parcel of land situated in the city of Syracuse, county of Onondaga, which belonged to the defendant Silberstein, and which, as appears oy his affidavit, is of the value of about $8,000, encumbered for about $6,400, leaving a margin, as he states, of at least $1,500 over and above the incumbrance. A demand of change of place of trial was made in due form, on the ground that the place of trial was not laid in the proper county, and the motion is based upon such demand, and the grounds stated therein, and also upon affidavits tending to show that the place of trial should be changed for the convenience of witnesses.

To meet the claim that the city of New York is not the proper place of trial, on the ground that the action affected the question of title or interest in real estate, the plaintiffs made a stipulation that they “ will not attempt to reach the real estate of said assignors assigned to said assignee, or make any claim of title or interest therein or thereto.” The special term denied the motion upon the affidavits and the stipulation referred to.

The construction given by the court of appeals in Acker v. Leland (96 N. Y., 384), to sec. 982 of the Code of Civil Procedure, requires us to hold that this action is local within the provisions of that section. It must be tried in the county in which the subject of the action, or some part thereof, is situated. The defendants were, therefore, .entitled, upon their demand, to have the place of trial changed, and the order should accordingly have been made unless the stipulation given by the plaintiffs had the effect to take the case out of the provisions of sec. 982 of the Code.

The object of the action is to have the assignment declared absolutely void because made in fraud of creditors. The assignment conveys certain real estate to the assignee. A decision that it is void will affect the title to that real estate and it is difficult to see how the stipulation that the plaintiff will not pursue the real estate or claim any interest therein will prevent the effect of a judgment, if they succeed in obtaining one declaring the assignment void, from affecting the title to the land. A receiver appointed under such a judgment would take title to the land and the refusal on the part of the plaintiffs to reap any benefit therefrom would only impose on the receiver the obligation of applying it to other creditors who might come in and be made parties to this action or commence other actions. The right of the defendants to change the place of trial cannot we think be disposed of by such a stipulation.

tin the subject of witnesses the question presented to the court was one' addressed to its discretion and it may be that the stipulation to admit on the trial what a portion of the defendant’s witnesses would testify to, together with the witnesses sworn to on the part of the defendant to reside in the city of New York, was an answer to that branch of the motion. But we are not inclined to examine particularly the disposition made of this part of the motion because the order changing the place of trial should have been granted on the ground already considered.

The order should, therefore, be reversed and the motion granted with costs of the motion and of this appeal to abide the event.

Daniels and Brady, JJ., concur.