Citizens' Nat. Bank v. Hodges

HERRICK, J.

It seems to me that the case of Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9, disposes of these cases. That case has been twice to the court of appeals, and the complaint therein been subjected to the keenest scrutiny; and, if that complaint is sufficient, it seems to me that those in the cases now before us must be. The complaints in these cases are much more full and complete in their allegations than was the complaint in the case of Kain v. Larkin. Both allege the ownership and possession of property by some of the defendants, and that, while so owning and in possession of such property, they became indebted to the plaintiffs; that the plaintiffs recovered judgments against them; that executions were issued upon such judgments, and returned wholly unsatisfied and unpaid; and that the judgments remain wholly unpaid and unsatisfied. They allege that, after contracting such several debts, the defendants conveyed away their property to others of the defendants; that upon one piece of property a mortgage was given; and allege that the several deeds and mortgages and assignments of mortgages were, and each of them was, made, given, and executed without any actual consideration, or for a fictitious consideration, and with the intent on the part of the persons so conveying and mortgaging to hinder, delay, and defraud creditors, and with the intent to secrete and dispose of such property. It also sets forth the execution of a general assignment for the benefit of creditors, and alleges that such assignment was made with the intent to hinder, delay, and defraud the defendants’ creditors, and with the intent and purpose of subsequently acquiring title to such assigned property for much less than its full value; that is, nominally in the name of some other person, but really and actually for the benefit of the defendants, through a sale by the assignee. After making the specific allegations of the transfer and mortgage of the real estate, the complaints allege that the debtor defendants, with the like fraudulent intent and purpose, have transferred and disposed of all their personal property, and property of every kind subject to levy and sale under execution, so that neither of them has any property, or the title thereto', out of which plaintiffs’ said judgments and executions against them can be satisfied; and allege that, unless defendants’ said property can be reached to compel the payment of such judgments, the same must remain unpaid, and the plaintiffs will be wholly remediless. These allegations, it seems to me, are sufficient. In the case of Kain v. Larkin the court said:

“The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants, and the return of an execution issued thereon unsatisfied; that the judgment is still due; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter, and brother, by instruments particularly described; and that by the death of the wife, and through a satisfaction of the mortgage on the real estate by the brother, and a deed to her by the plaintiff, all this property has become vested in and is now held by the daughter, who has been made a defendant, and has answered the complaint. The complaint then avers that the deed, mortgage, and transfer of money in bank to defendant’s credit to his wife, daughter, and brother were made without consideration, and with the intent to hinder, delay, and defraud the plaintiff of her claim.”

■It will be seen from this resumé of the complaint in that case by the court that, as I have before stated, such complaint was much more meager than the ones we have now under consideration. It is claimed that there is no allegation in the complaint in the first-entitled action that the plaintiff has exhausted its remedy by execution; that there is no allegation that an execution has been issued against the property of the defendants; that the complaint does not show what kind of an execution was issued; and it is claimed that it should appear from the complaint that an execution has been issued against the defendants’ property. After setting forth the recovery of several judgments entered and docketed in ■the Saratoga county clerk’s office, the complaint then states:

“That thereafter, and on the same day, an execution upon each of said judgments was duly issued to the sheriff of said Saratoga county, where said defendants then resided and yet reside, which executions were thereafter, and' before the commencement of this action, duly returned by said sheriff unsatisfied, and said judgments still remain wholly unpaid and unsatisfied.”

Under such an allegation it seems to me that evidence can be given showing both the kind of an execution issued and against whom it was issued,—whether against one or all of the defendants.. An inspection of the record in the case of Kain v. Larkin show's that the complaint sets forth the issuing of an execution in that case, in the following language:

“An execution on said judgment was duly issued and delivered to the sheriff of the county of Ulster, where Patrick Larkin resided and yet resides, and that the said sheriff has duly returned said execution wholly unsatisfied, and. that said judgment remains wholly unpaid.”.

It will be seen that the language is very similar to that used in the complaint in this case, and that it does not allege the issuing of an execution against property.

Another criticism of the complaints now before us is that they do not show that the defendants have transferred all their property, so that they are wholly without means of satisfying the plaintiffs’” judgments. An inspection of the complaint in the case of Kain v. Larkin shows that there is no such allegation in that case, whereas in these cases we have now under consideration there is the following allegation:

“That said defendants Hodges and Trim have with the like fraudulent intent and purpose transferred, delivered, and disposed of all their personal property, and property of every kind subject to levy and sale under execution, so that neither of them has any property, or the title thereto, out of which plaintiffs” said judgments and executions against them can be satisfied.”

The other defendants being the assignees and grantees named in the several instruments by which Hodges and Trim disposed of their property, it seems to me that the allegation is sufficiently broad to admit proof under it showing that they had disposed of all their property, and necessarily shows that the plaintiffs would be prevented by any ordinary process of law from recovering their claims-against them. But under the case of Kain v. Larkin it does not seem necessary to allege that the plaintiffs are remediless because the defendants have disposed of all their property:

“A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances; but it is not necessary to insert them in a pleading, and it is generally improper to • do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could: .prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent 'to hinder, delay, and defraud creditors is broad and sweeping in its operation •and effect. It involves many elements, and may, before it can be deemed •established, require proof of many other facts and circumstances, which may be given in evidence under the general charge, without inserting them in the .pleading.”

The judgment appealed from should be affirmed, with costs. All -concur.