Opinion
March Term, 1899.
J. McC. Mitchell and John G. Milburn, for the appellant.
Albert C. Spann, for the respondent.
The learned referee found as a fact that by the bill of sale in question the defendants Meyers as copartners assumed to transfer all their property to the defendant Loud; that the defendant Loud paid no consideration whatsoever for such transfer, and that the same was wholly without consideration; that the defendants Meyers at the time of such pretended transfer were not indebted to the defendant Loud in any sum whatsoever, either individually or as copartners.
The learned referee also found, which finding was classified as a conclusion of law, "That said pretended bill of sale was made, executed and delivered by said Theodore H. Meyers and George C. Meyers for the purpose of hindering, delaying and defrauding their creditors."
We think the evidence amply justified the findings of the referee, that the transfer in question was made by the defendants Meyers for the purpose of hindering, delaying and defrauding their creditors. By the instrument in question the defendants assumed to transfer their entire property, amounting, according to the inventory made by them at the time of such transfer, to more than $11,000, to the defendant Loud, to whom they were not indebted in any amount, for the sole purpose of enabling him to pay certain unliquidated demands of other creditors to whom they were indebted, which, according to the undisputed evidence, did not exceed the sum of $3,500, and without any express agreement on the part of the defendant Loud that he would apply the proceeds of the property so transferred to him to the payment even of such indebtedness; and such transfer was made immediately after the defendant Theodore H. Meyers had a conversation with the attorney for Wilson, the natural effect of which was to induce said attorney to refrain from entering judgment for the amount of said Wilson's claim for a few days, relying upon the assurance, expressed or implied, that no change in the property of the defendants Meyers would take place in the meantime.
It is urged on the part of the appellant that there is no finding of fact by the referee that the instrument in question was executed with intent to hinder, delay and defraud creditors; that the conclusion of the referee, "that said pretended bill of sale was made, executed and delivered by said Theodore H. Meyers and George C. Meyers to said William F. Loud, for the purpose of hindering, delaying and defrauding their creditors, and is void, null, fraudulent and ineffectual as against the judgment of said Charles T. Wilson," cannot be given the effect of a finding of fact, but must be held to be a conclusion of law. This contention is not well founded.
In the case of Berger v. Varrelmann ( 127 N.Y. 281) the court say: "It is well settled that, though a `finding of fact' be called a `conclusion of law,' and improperly classified as such in the decision signed, * * * it will, for the purpose of upholding a judgment, be given the same effect as though embraced within and designated as one of the findings of fact." ( Adams v. Fitzpatrick, 125 N.Y. 124; Christopher St. R. Co. v. Twenty-third St. R. Co., 149 id. 51.)
Having reached the conclusion that the learned referee found in effect as a fact, although classified as a conclusion of law, that the transfer in question was made for the purpose of hindering, delaying and defrauding the creditors of the defendants Meyers, and that such finding of fact is fully sustained by the evidence, it is unnecessary to pass upon the other questions raised by the appellant upon this appeal.
It follows that the judgment entered upon the decision of the referee should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.