Scofield v. Spaulding ( 1889 )

Hardin, P. J.

1. Upon the evidence before the referee the question of whether or not the conveyance in question was made with intent to hinder, delay, and defraud the creditors of William Spaulding was one of fact. Peck v. Crouse, 46 Barb. 151; 3 Rev. St. (7th Ed.) 2329. We think the evidence fully warranted the referee in finding, as a matter of fact, that the conveyance was made with the fraudulent intent on the part of the grantor, and received by the grantee with the like fraudulent intent. Starin v. Kelly, 88 N. Y. 418.

2. We are of the opinion that the admissions or declarations of William were competent evidence against him, as he was a party defendant. He remained in the possession of the property, and, although it is said that it was under alease, yet the position of the plaintiff in attacking the conveyance is that the lease is only a part of a fraudulent contrivance to keep the property beyond the reach of William’s creditors.

3. After the evidence was given tending to establish a conspiracy to defraud the creditors entered into by William and Philo, the admissions or declarations of William were competent evidence as against him. Cuyler v. McCartney, 40 N. Y. 228; Loos v. Wilkinson, 110 N. Y. 195,18 N. E. Rep. 99; Waterbury v. Sturtevant, 18 Wend. 359. When the admissions and declarations of William were offered, they were competent evidence against him, and therefore the court could not have excluded them. Wright v. Nostrand, 94 N. Y. 31. Before the evidence closed there was abundant testimony for the referee to find that there was a combination and conspiracy between the .grantor and grantee to hinder, delay, and defraud the creditors of the grantor. The conversation held in the presence of Philo in the Windsor Hotel, detailed by the several witnesses, was sufficient to indicate the fraudulent purposes of the grantor and grantee, and to establish a scheme to hinder, delay, and defraud the creditors of the grantor. Philo was present at the conversation, according to the testimony of the witnesses, and made no statement nr declaration contrary to the avowed purpose of William in making the “deal” with Philo by transferring his real estate in exchange for patent-right. He is therefore presumed to have accquiesced in the statements. 1 Cow. & H. (n) 191, 192. However, as the referee received in evidence declarations of William made after the deed, as well as testimony taken in proceedings supplementary to execution, against the objection of Philo, thus in effect holding they were competent evidence against Philo, we think an error was committed. The opinion of Martin, J., considers this question in extenso, and the views expressed in his opinion must prevail. Therefore we must reverse, and order another trial. Judgment reversed on the exceptions, and a new trial ordered before another referee, with costs to abide the event.

Merwin, J., concurs.