Legal Opinion

Howe v. Sommers

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1897PublishedCited by 1 opinion

Appeal by the defendants, Charles H. Sommers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of W estchester on the 6th day of May, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term declaring null and void an assignment from the defendant Challes H. Sommers to the defendant Mary A. Berrian, and setting the same aside so far as the plaintiff is concerned,…

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Appeal by the defendants, Charles H. Sommers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of W estchester on the 6th day of May, 1897, upon the decision of the court rendered after a trial at the Westchester Special Term declaring null and void an assignment from the defendant Challes H. Sommers to the defendant Mary A. Berrian, and setting the same aside so far as the plaintiff is concerned, and directing the defendant Edward L. Stevens to 'pay to the plaintiff or his attorneys the sum of $1,340.68. The facts…

1Opinion of the Court

Cullen, J. :

This is a judgment creditor’s action to set aside as fraudulent an assignment of a legacy. I concur with the presiding justice that the debtor, though insolvent, had the right to prefer one creditor to other creditors; that fraud is to be proved, not presumed; and that if the facts proved are as consistent with innocence as with guilt, the evidence is insufficient to establish the fraud. At the same time, fraud can rarely be proved except by circumstantial evidence; and though the issue be fraud, still in a civil action it is not necessary that the charge should be proved beyond a…

2Cases cited1 opinion

  1. Billings v. . RussellNew York Court of Appeals · 1886

3Cited by1 opinion

  1. Obermeyer & Liebmann v. JungAppellate Division of the Supreme Court of the State of New York · 1900

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