Spies v. Joel
The Superior Court of New York City
This was an application on the part of the defendants to vacate an order of arrest, which had been granted on the allegation that they had disposed of their property, with intent to defraud their creditors (Code, § 178, sub. 5). It appeared that before the commencement of the suit they had made an assignment of all their property, directing that the avails should be applied to the payment of all the debts owing by them to certain creditors who were named, but containing no…
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This was an application on the part of the defendants to vacate an order of arrest, which had been granted on the allegation that they had disposed of their property, with intent to defraud their creditors (Code, § 178, sub. 5). It appeared that before the commencement of the suit they had made an assignment of all their property, directing that the avails should be applied to the payment of all the debts owing by them to certain creditors who were named, but containing no provision relative to the disposition to be made by the assignee of any surplus that might remain after the satisfaction…
1Opinion of the CourtDuer, J.
It may be true,' as the counsel for the plaintiffs has contended, that the court of appeals, by its recent decisions, has settled the law, that the omission in an assignment, giving preferences, of any provision relative to a possible surplus, is evidence of a fraudulent intent, which renders the assignment void under, the statute. But, in my judgment, it is only a constructive fraud which is thus established, for I cannot regard the omission as. evidence j)err se of an actual intent, existing in the mind of the debtor and governing his act; and I am clear in the opinion that it is proof of…
2Cited by6 opinions
- People ex rel. Caldwell v. KellyNew York Supreme Court · 1862
- Birchell v. StraussNew York Supreme Court · 1858
- Friend v. MichaelisCity of New York Municipal Court · 1885
- Caldwell's CaseNew York Supreme Court · 1862
- Birchell v. StrausNew York Supreme Court · 1858
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