Opinion
May Term, 1896.
Abram Kling, for the appellant.
Thomas Darlington, for the respondents.
The appellant contends that the transfer by McDonald of all his property to his sons at a time when he was largely indebted to his creditors, upon an agreement that they would pay his indebtedness and not apply any of the proceeds to their own use until the obligations of the father were settled, was evidence of a transfer with intent to hinder and delay creditors, and prevent them from collecting their debts, and that, it being shown that there were creditors who were not paid by plaintiffs, the bill of sale was void as to such unsecured creditors.
Our reading of the record renders it entirely unnecessary to discuss this question, because we think it is abundantly shown that the property taken by the defendant was no portion of the original property transferred by the judgment debtor, but was property which long subsequent to such transfer was made in the factory and taken to plaintiffs' place of business for sale. Thus, it is shown that the transfer was made in October, 1890; that thereafter the plaintiffs entered into possession and continued in possession for some months, selling the property and applying the proceeds as they had agreed to the payment of their father's debts, and filling such orders as he sent from Europe, so that when the seizure was made in July, 1891, they had, out of the proceeds of the property, fully paid the consideration agreed to be paid. In addition, they had continued on their own account to manufacture desks at the Jersey City Heights factory, which were brought from that place to the Nassau street store, and the uncontradicted evidence in the case is that it was property answering this description, subsequently manufactured by the plaintiffs and forming no part of the original property transferred to them by the father that was seized by the defendant. The latter presented no evidence to justify his levy upon such property, and at the close of the case the trial judge would have been justified in directing a verdict for the plaintiffs, leaving to the jury an assessment of the value of the property so wrongfully taken.
As no complaint is made in regard to the charge upon the question of damages, and as the amount awarded was much less than the jury might have given, the verdict should not be disturbed.
Judgment affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Judgment affirmed, with costs.