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be more than one of such devisees prosecuted in the action, by section 1847 of the same Code, the recovery, as to damages and costs, is to be apportioned to the value of the devised property. There is no provision in either of these, or any other section, rendering the devisee liable because, as the heir at law of another devisee, he or she may have inherited property previously devised to the deceased devisee. Neither has the statute, by anything contained in it, rendered the heir of a devisee liable for the debts of the testator making the devise; and as the remedy has been prescribed and regulated wholly by statute, at the same time, also, being declaratory of the rights of the creditor, and the liability of a devisee as heir of another devisee has not been created, it cannot be maintained under the provisions of the law. But, as to the deceased devisee, the indebtedness, if it is to be collected at all, must probably be in the ordinary course of administration, as other debts existing against the deceased devisee are collected. So far, therefore, as the defendant has been charged for the indebtedness prove in the action, as the heir of onethird of the estate devised to a deceased devisee, there seems to be no legal ground for its support. By the decision of the judge, at the trial, this liability has been placed upon the assumed fact that the defendant acquired this half of one-third as the heir of the testator But that finding is not warranted by the facts; for she did not inherit the half of the one-third devised to Lewis Pfenning, the deceased devisee, as the heir at law of the testator, but she derived it as the heir at law of this devisee; and, as to that, she has not been rendered liable by reason of the descent of the property to her in this manner. If the statute had charged the indebtedness upon land, then the judgment maintaining this liability might be sustained, but it has not done so. It has gone no further in that direction than to create a personal or individual liability, the judgment upon which has been directed, by section 1852 of this Code, to be satisfied out of the real property devised by the testator to the defendant. And so far as it has provided for the liability of heirs, that liability has been restricted to the heirs alone of the testator himself The other devisee of one-third of the estate died in September, 1885, leaving one child, and the share descending to that child had been otherwise sold. There was, accordingly, no person who could be proceeded against, under the statute, other than this defendant, and she was liable for no more than one-third of the debt.

In the judgment which was awarded, the costs and disbursements of the action were allowed against this defendant. That allowance has been complained of as erroneous, for the reason that the statute has provided that, in such an action as this, what the plaintiff is entitled to recover for damages and costs must be apportioned among all the defendants, in proportion to the value of the real property descended or devised to each devisee, in the same manner as is declared in section 1839 pf the Code. But these sections clearly apply only to an action brought against two or more devisees. They have no application to the case, where the action is against a sole defendant, as heir or devisee. In such an action, no apportionment of the costs is directed to be made. The extent of the liability of the devisee has been defined and declared. Whether the suit be against a devisee, as the person who alone is liable, or against two or more, the liability for the indebtedness is still the same. But as to the costs, no apportionment has been directed, or can be made, under the provisions of the statute, where, as in this case, the action is against a sole devisee. The judgment, however, should be so far modified as to limit the liability of the defendant to one-third of the indebtedness, with interest upon it; and, as so modified, it should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J., and BRADY, J., concur.

GOETZE et al. v. DUNPHY.

(Supreme Court, General Term, First Department. November 23, 1888.) SALE-ACTION FOR PRICE-INSTRUCTIONS-NEW TRIAL.

Defendant contracted with plaintiffs for the purchase of certain calf-skins, which plaintiffs guarantied should lose not more than 6 per cent. of their invoice weight. Defendant refused to receive them, and plaintiffs sued him for the difference between the contract price and the actual proceeds of the skins, which they had sold at auction. It was proved that the skins had shrunk more than 6 per cent., and the court charged that if the shrinkage below the invoice was greater, at the time of delivery, than the limits allowed by the contracts, defendant had the right to reject. The jury found for plaintiffs. Held, that defendant was entitled to a new trial.

Appeal from special term, New York county; PATTERSON, Justice.

Action on contract by Hermann Goetze, Ernst Popert, and Axel Thomsen. doing business in Hamburg, Germany, under the firm name of Goetze & Popert, against John Dunphy. There was a verdict for plaintiffs, on which judgment was entered, and defendant appeals.

Before VAN BRUNT, P. J., and BARTLETT and DANIELS, JJ.

Hobbs & Gifford, for appellant. Evarts, Choate & Beaman, (Treadwell Cleveland, of counsel,) for respondents.

DANIELS, J. The defendants entered into three contracts, in April and May, 1884, for the purchase, from the plaintiff, of three different lots of wet, salted calf-skins. The calf-skins contracted to be sold in this manner, afterwards in part arrived, and were unladen at a wharf in Hoboken, on the harbor of New York. The defendants refused to accept or receive the skins, and they were afterwards sold, under the authority of the plaintiffs, and the verdict has been recovered for the difference between the prices agreed to be paid and the proceeds of the sale. These skins were to be shipped by the plaintiffs, who were engaged in business at Hamburg, in Germany, and delivered on their arrival in New York. Each of the contracts of sale contained the statement that the skins were guarantied not to lose over 6 per cent. from their invoice weight. By the evidence of John Andresen, who was the broker by whom the contracts of sale were negotiated, the fact was proved that the skins did lose in weight more than this percentage. He stated that some of them had lost 1 or 2 per cent. more than 6 per cent., and some had lost more. And there was no contradiction whatever, as to this fact, in any of the evidence taken upon the trial. The fact that the skins had lost more than 6 per cent. from their invoice weight was conclusively proved, therefore, upon the trial; and as to this fact the defendant's counsel asked the court to charge that if the shrinkage below the invoice weight was greater, at the time of delivery, than the limits allowed by the several contracts, respectively, the defendant had the right to reject such skins, and the plaintiffs could not recover under such contracts. The court responded. "Yes, that is substantially so; that if the shrinkage below the invoice was greater, at the time of the delivery, than the limits allowed by the several contracts respectively, the defendant had the right to reject.' Under this evidence, and the direction given by the court to the jury, their verdict should have been for the defendant. They must have misunderstood the direction which the court gave, to return the verdict which they did. The judgment and order should, therefore, be reversed, and a new trial directed, with costs to the defendant to abide the event of the action.

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VAN BRUNT, P. J., and BARTLETT, J., concur.

SMITH et al. v. WHITE et al.

(Supreme Court, General Term, First Department. November 23, 1888.) 1. ASSIGNMENT FOR BENEFIT OF CREDITORS-FRAUDULENT PREFERENCES. Where an assignor for benefit of creditors preferrred the firm of which the assignee is a member, and it appears that, from his expectation to derive some benefit from the administration of the property, and from an agreement between him and the assignee, in relation to the purchase of a portion of the property, and from his attempts to borrow money from the assignee's firm, because of such preference, the assignor expected to be benefited by the assignment, and that the preference was for that purpose, the assignment is properly declared to be fraudulent.

2. SAME-CONCEALMENT OF PROPERTY-Evidence.

Concealment of property is not sufficiently shown by the assignor's testimony that goods of the value of $700 were in his house at the time of the assignment, and were never delivered to the assignee, but were sold to various people in the same city, of whom he cannot name one, or of whom he afterwards names one, but cannot give the circumstances, or the quantity sold to him; nor by the testimony of his wife that she retained the goods for her wages; the assignee testifying that he procured goods from the house, and, on examination, found no others, and it further appearing that the assignor attempted to borrow money to relieve his necessities, which necessities were the alleged cause for selling the goods.

3. SAME-SALE BY ASSIGNEE TO HIS OWN FIRM-EVIDENCE.

Evidence that the assignee, fearing that he would be deprived of the property, and lose his preference, applied to H., who, after a superficial examination, purchased it with money belonging to the assignee's firm; that a clerk of the firm was placed in charge, and the assignor and his wife were employed about the premises; that a part of the property was consigned to and sold by the firm, and another part was stored, under its control, which latter part was sold by, and the price paid to, the assignee's partner; that H. gave no attention to the business, and made no entries respecting it in his books, and alleged that he repaid the partner in bills, instead of a check, because of convenience, but paid other debts by check,-sufficiently shows that the assignee's firm was the real purchaser.

Appeal from special term, New York county.

Action by M. V. B. Smith and others, judgment creditors of James White, against James White, Charles Wise, and others, to set aside an assignment for benefit of creditors by White to Wise. Judgment for plaintiffs, and defendants appeal.

Argued before VAN BRUNT, P. J., and BRADY and BARTLETT, JJ.
Otto Horwitz, for appellants. A. Blumenstiel, for respondents.

VAN BRUNT, P. J. This appeal is based entirely upon a consideration of the facts, and it is claimed that the evidence introduced upon the trial failed to support the findings of fact of the court below. The action was brought to set aside an assignment made by the defendant James White to the defendant Charles Wise, for the benefit of creditors. In and by said assignment were preferred certain indorsements of the firm of L. & C. Wise, of which the assignee was a member, and also an indebtedness due by the said James White to the said firm of L. & C. Wise. There were next preferred certain debts of James White to one John Dwyer. It was claimed upon the part of the plaintiffs, who are judgment creditors of James White, that this assignment was made with intent to hinder, delay, and defraud the creditors of James White. And it is claimed that the evidence shows that there was a fraudulent concealment of property by James White, and that a frauduleni arrangement was entered into, between the assignor and the assignee, whereby the assignor was to receive certain benefits out of the assigned property. The evidence to establish these propositions was largely circumstantial, and depends upon inferences to be drawn from the acts of the parties in reference to the assigned estate. It is true that, in regard to the arrangement for the benefit of the assignor, the assignor has directly testified to such agreement; but it is apparent, from the nature of the testimony of the assignor, that no reliance whatever can be placed upon any evidence which he gave, unless it

is in some way corroborated by the other evidence in the case, or the circumstances which have been established otherwise than by his testimony.

The evidence of the assignor, in reference to his disposition of the $700 worth of goods, which he claims were in his house at the time of the assignment, and which were never delivered over to the assignee, is of such a character as conclusively proves that any evidence that he might give is totally unreliable. It appears from his testimony that he sold this $700 worth of goods for the purpose of supplying necessaries for his family; that he was in great need of money; that he sold these goods to various people, all in the city of Brooklyn, but he is not able to name a single person to whom he sold a single article. This story is absolutely incredible, and is undoubtedly false. It is impossible for anybody to place any credit upon a statement so palpably false as this. The fact of the sale of these goods, certainly, was a matter of some importance to the assignor at this time, in view of his alleged necessi tous circumstances; and that he should have sold the whole, without being able to name a single purchaser, and all in Brooklyn, cannot be credited. It is true that he subsequently testified to the fact that he sent some of these goods to the firm of A. S. Richards & Co. but how much, when, or where, is in no way disclosed. The story upon the part of the wife of the assignor, that these goods were retained by her, from time to time, because of her wages, which remained unpaid, is equally incredible. This seems to have been an invention of her own, because, during his examination, the assignor, White, seems to have claimed these goods, and he and his wife do not seem to have been exactly in accord as to the circumstances under which these goods were retained in his house. It is true that it is urged, upon the part of the assignee, that this story is entirely a fabrication, and that no such goods ever existed; that there were certain goods, a part of the stock of leather, in the house of the assignor, which the assignee procured, and he then examined, and did not find any other goods there; and such a quantity of goods as testified to by White could not have been there, without his seeing them; and it may be that the existence of these goods was due to the fertile imagination of the assignor If the assignor had these means at his command, why should he be so solicitous, immediately after the assignment, to obtain money from the assignee. The evidence is beyond dispute that attempts were made, that his necessitous circumstances were pleaded, in order that his old friends L. & C. Wise, who had been the consignees of his goods, should relieve his necessities. It becomes necessary, therefore, in order to sustain this charge of fraud, that we should look to see whether any evidence to show that a fraudulent intent existed upon the part of the assignor can be found from those facts which are established from other sources, without the evidence of the defendant and his wife. It seems to us plainly deducible, from the evidence of the other witnesses in the case, that the defendant White did not intend to part with his property, for the purpose of paying his creditors, without the hope of ultimate reward. He believed that he would derive some benefit from the administration of this property, after the assignment. From what this belief arose, we are not informed, except so far as it supports the statement which was made by White of the agreement between himself and the assignee, as to his future employment. But that such a belief existed, seems to be beyond question established by the evidence of Wise, who states that, in a conversation had shortly after the assignment, when White was being shoved aside, that White did not like it at all, and stated that he did not think the business was to be done in that way; that he thought he was going to run the factory. It further appears from the evidence of the assignee that, in respect to the horse and the yacht, it was understood between the assignee and White that he should get the yacht and the horse and wagon, and that the assignee told him he would protect him all he could, and that he should have the first chance, provided he paid as much as anybody else. It further appears that

the assignee allowed White to select appraisers for the yacht, in order to determine the value at which it was to be turned over to him; and White seems to have thought his rights in reference to the yacht, in consequence of the agreement made, were of such a character as justified him in taking possession of the same, and it required legal proceedings on the part of the assignee to get it back. The whole atmosphere surrounding the inception and the carrying out of this assignment shows that it was not made in good faith on the part of White, but that it was made for the purpose of getting some benefit therefrom, and that his preference of the debts due to L. & C. Wise were made because he expected to derive some benefit therefrom, from the firm of L. & C. Wise, and not simply for the purpose of paying their debt. The attempts to borrow money immediately after the assignment were indicative of this. The inference naturally follows, from the circumstances attending these loans, that they were applied for, based upon the fact that in the assignment White had preferred L. & C. Wise. Loans seem to have been made to Mrs. White by the firm of L. & C. Wise. They may possibly have been induced by this consideration. But it is entirely immaterial how great may have been the good faith of L. & C. Wise, in respect to this assignment, if we find from the whole evidence that there was a fraudulent intent upon the part of James White, or that the assignment was made by him because he supposed that he was going to get some gain therefrom. Whether the hope was well founded or not, the fraudulent intent existed, which invalidated the act, as against all his creditors. The inferences, therefore, which were arrived at by the court below, are not so unsupported by testimony as would justify this court, which has not the witnesses before it, in disturbing the conclusion, even if we thought that the weight of evidence was in favor of the defendant. But upon a consideration of the circumstances attending this assignment, and the subsequent acts of the parties thereunder, we cannot but come to the conclusion that, at least, James White was actuated by a fraudulent intent in making this disposition of his property, which he had a right to do, if actuated by proper motives.

There is another transaction which is attacked by the plaintiffs in this action. It is a sale of a portion of the assigned property to one Hirsch. It is claimed, upon the part of the plaintiff, that the conclusion drawn by the court that this was a sale by the assignee to his own firm, is amply supported by the evidence showing the transaction in all its details. That there was evidence enough to sustain the conclusion of the court in this regard, we cannot doubt. It may be, however, that the conclusion is more strongly established by the failure to prove facts than by the facts established. The circumstances proved were of such a character as necessarily to call upon the defendants for explanation, and satisfactory explanations were not forthcoming, and the absence of such explanations necessarily led to the one result. It appears from the evidence that the assignee's firm of L. & C. Wise were largely engaged in business, as commission merchants, and that the defendant Leon M. Hirsch was also engaged in business, as a large shoe-dealer, in Grand street. They' appear to have been acquainted with each other for a considerable length of time, but it does not appear that they had had any commercial dealings of any magnitude, prior to the one in question. The assignee, being fearful that replevin proceedings would take out of his possession a considerable part of the assigned property, and thereby the chance of his firm getting their preference largely diminished, concluded that it was necessary to get rid of the assigned property in the shortest manner possible, and Hirsch was applied to, for the purpose of carrying out this scheme. After a very superficial examination of the property to be sold, he buys the same, with money borrowed from Leopold Wise, and which appears to have been advanced by the firm of L. & C. Wise to Leopold Wise. This money, or some portions of it, Hirsch claims to have repaid, in bills, no check ever having passed, and no account

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