residence, place of business, nor business elsewhere. Action to recover property seized by the defendant, the sheriff, under the following circumstances: The firm of Winn & Weaver were, He has engaged in enterprises and accepted positions which would seem to necessitate his permanent prior to November 1, 1878, doing residence in this city. On the business as carpet merchants in whole, we are satisfied that the New York. During the several defendant is a resident within the years previous to November 1, meaning of the code. Order affirmed. 1878, the firm had borrowed of plaintiff, the wife of one of the Opinion by Barrett, J.; Davis, members of the firm, sums of P. J., concurring. FRAUDULENT TRANSFER. JURY. N. Y. SUPREME COURT. GENERAL money aggregating something upwards of $11,000. On November 1, 1878, the firm made a formal bill of sale to plaintiff of the property in the store, stock, bills receivable, notes, &c. Thereupon plaintiff went to the store, and em Henrietta S. Weaver, applt., v. ployed one B. to carry on the busi Bernard Reilly, sheriff, respt. Decided June 11, 1890. A sale of personal property not followed by change of possession to the vendee is pre ness for her, and B. carried on such business, was paid by plaintiff, and accounted to plaintiff for the money received, B. sometimes paying over the money himself to her, and at sumptively fraudulent as to creditors, yet others delivering it to plaintiff's such change of possession may take place husband, by her permission, to be without an actual removal of the property. delivered to her. On the 7th of By an actual delivery and assumption of December, 1878, an attachment was control by the vendee a change of possesissued against the property of Winn sion may take place while the property remains where it was prior to the sale. & Weaver, at suit of one of their Where there is such change of possession, creditors, upon a claim against such such sale is not presumptively fraudulent. firm, and property included in the While the law declares a transfer of personal bill of sale to plaintiff was seized property in trust for the use of the person transferring it, and assignments to hinder, by the sheriff. At the trial the &c., creditors, are fraudulent and void as to seizure by the sheriff was sustained creditors hindered, &c., the question of and the complaint dismissed by the fraudulent intent, where the transaction is equivocal, and different inferences may be court, upon the ground that the drawn as to its character, is a question of bill of sale to plaintiff was prefact for the jury and not of law for the sumptively fraudulent, being unaccourt. The controversy with respect to the companied by a change of possession, as was there held. good faith of the transaction, upon conflicting evidence, is for the jury. Appeal from judgment recovered ou dismissal of the complaint at the Circuit. Vol. 10-No. 11. H. B. Philbrook, for applt. Held, That the evidence showed a change of possession of the prop This action was brought to ob erty, and therefore there was no presumption that the sale was tain an accounting from defendant fraudulent. of certain alleged overcharges. That while the law declares that Plaintiffs, in 1862, employed detransfers of chattels for the use of fendant to buy for them in New the person so transferring same, York" city horns" for a commisand also transfers to hinder and sion of two and one-half per cent. defraud creditors, are fraudulent as The employment continued to and to them, yet the question of fraud- including 1874, each year's busiulent intent, where, as here, the ness being separately settled and transaction is equivocal and differ- paid. The defendant rendered a ent inferences may be drawn with statement of the amount and cost of respect to its character, as to the several purchases, and received whether or not made in good faith, in money the amounts so rendered. is for the jury and not for the The defendant, in his invoices durcourt. The jury should determine ing these years, stated a higher what inference shall be drawn. 56 price than he had in fact paid, and N. Y., 273; 14 N. Y. Sup. Ct. R., in this way obtained more than suf146; 3 R. S., 5th Ed., §§ 221, 2-4. ficient funds to pay for the horns Plaintiff had the right to have purchased. The plaintiffs had no such question determined by the knowledge of these wrongful acts jury. The court erred in directing until 1878, and then brought this a dismissal. Judginent reversed. Opinion by Daniels, J.; Barrett, J., concurring. STATUTE OF LIMITATION. N. Y. COMMON PLEAS GENERAL Decided June 7, 1880. In an action for equitable relief, to wit: on the It is in the nature of an action at law, although maintain an action. suit for defendant to account and pay them the overcharges. The court, upon the trial at Special Term, gave an interlocutory judgment for an accounting, overruling the defence setting up the Statute of Limitations-that more than six years had run since the alleged cause of action. W. J. Butler, for plffs. Homer A. Nelson, for deft. Held, That it is conceded that, under the old Code, the six years' Statute of Limitations applied, because it limited actions for relief upon the ground of fraud to that class of actions which were solely cognizable by the Court of Chancery; and it was conceded plaintiff had a good cause of action at law for the frauds alleged to have been perpetrated, and that the jurisdiction of the Court of Chancery was not exclusive but concurrent. It is tract, obligation, or liability, exthen necessary to consider whether pressed or implied, except a judg has no cause of action on transactions prior to December 30, 1872. Section 410 of the Code, only applies to cases where demand is necessary to entitle a person to maintain an action. In the case at bar no demand whatever was necessary in order to entitle plaintiff to com Opinion by Van Brunt, J.; Larremore and Daly, JJ., concurring. the New Code has made any change ment or sealed instrument,' must be in respect to the Statute of Limita- commenced within six years." The tions as applicable to causes of ac- causes of action in this case certion such as are set forth in the tainly arise upon a contract, obligacomplaint in this action. The court tion, or liability, and therefore fall then refers to section 382 of the expressly within the terms of the Code, containing the limitation of sub-division above quoted; theresix years, as applied by sub-division fore the six years' Statute of Lim5, and says: "It is to be noticed itations applies, and the plaintiff that the word 'solely,' contained in the old Code is omitted in the new; and we are informed by the note to the section that such change was made to meet the decision in the case of Foot v. Farrington, 41 N. Y., 164. It seems, however, upon a careful reading of the section, that by the change of the language of mence the action. the section the author of the Code has failed in attaining the object sought for. The language of the sub-division is-'An action to procure a judgment other than for a sum of money, and on the ground of N. fraud,' &c.; and it is urged upon the part of the defendant in this action that the sole relief which is sought to be obtained by a final judgment in this action is a judgment for a sum of money. It is true that, under the interlocutory judgment, certain equitable relief may be obtained; but, upon the final judgment, the sole relief which can be obtained against the defendant is a judgment for money. * It seems, therefore, that the causes of action set out in the complaint are expressly excluded by the terms of sub-division 5 of section 382. They The plaintiff had contracted to must then fall within the first sub- make a set of artificial teeth for division of section 382, which is as defendant, at the request of the follows:- An action upon a con- latter. * BREACH OF CONTRACT. Decided June 11, 1880. When plaintiff has completed his contract as far as possible, and the neglect of defendant prevents a perfect completion, he may sue for a breach of the contract, and may recover such damages as he can prove. The fact that his complaint is drawn on the theory of a completed contract will not prevent his recovery. Appeal from judgment entered in favor of defendant, upon dismissal of the complaint at circuit. He took the impression of de- of court because he proceeds on fendant's mouth, and proceeded to the basis of completion, for the conmake the set. In the course of tract price, instead of damages, by their construction defendant called reason of the breach. in several times to have them fitted and tried. When the teeth were nearly completed, plaintiff sent for defendant to call in and have the final fitting, without which the teeth could not be completed. This defendant neglected to do, in spite of plaintiff's frequent requests. The pleadings should, if necessary, have been amended or conformed to the proof, and the case submitted to the jury. Judgment reversed, and new trial ordered. Opinion by Barrett, J.; Davis, P. J., concurring. ENFORCED. N. Y. SUPERIOR COURT. GENERAL The teeth were never delivered. The complaint alleged the con- ALIMONY. PAYMENT HOW tract, the manufacture of the teeth, tender by the plaintiff, demand for their payment, and defendant's refusal. On the trial the court dismissed the complaint, on the ground that under the complaint plaintiff must prove that the teeth were fully completed, and that this he failed to do. Edward Gebhard, for applt. Held, That this was not an action for goods sold and delivered, but was upon a contract to manufacture the teeth for a specific price. Gane v. Gane. Decided June 18, 1880. Where alimony is directed to be paid by a final judgment, an order that the defendant give security for the future payment of the same, and in default thereof, that an attachment issue punishing the defendant as for a contempt, is not proper and will be reversed. In an action for divorce, the defendant having failed to pay certain sums as alimony, as required by the judgment against him, an order was made directing him to pay the Plaintiff made the teeth as completely as he could, and only needed the presence of defendant to finish alimony, " and that he give security them. Defendant repeatedly promised to call, but failed to do so, apparently wilfully. for the future payment of said $600, and in default thereof that an attachment issue punishing said defendant as for a contempt." Plaintiff did all that he was bound to, or could do, and defendant was The defendant appealed from this liable for such proper damages as order which was reversed, respondresulted from the breach. The ent moved for a reargument on the form of the complaint did not stand ground that since the decision, the in the way, although it was framed Court of Appeals had held, in Park upon the theory of substantial com- v. Park, that a judgment for the pletion, for, under the present sys- payment of alimony can be enforced. tem, a party is not to be turned out by proceedings for contempt. Held, That in this case the order requiring security for future payment to be given was made after judgment, and was not a part of the judgment or a modification of it. It did not purport to be either, nor did any part of the proceedings disclose the intention on plaintiff's part to move for a modification of the judgment. If the result had been an order which, on its face, modified a final judgment, the court would have been called upon to decide whether a final judgment could be modified by the proceeding that was taken. The proceeding, unless viewed as a means of enforcing the judgment, was an independent one to compel payment of alimony, and the court had no to entertain it. The opinion of the Supreme Court in Fark V. power Park, 25 Supreme Court Reports, 404, entertained the proceeding on the ground that the defendant had not complied with the direction of the judgment that security be given, and while it questioned, did not reverse, but assumed the correctness of Lansing v. Lansing, 4 Lansing, 377. Motion for reargument denied. Opinion by Sedgwick, J.; Curtis, Ch. J., and Freedman, J., concur. INSOLVENT INSURANCE Decided April 8, 1880. chap. 902, of Laws of 1869, relating to life insurance companies, is appointed to report the condition of the company, from which its solvency and capacity to continue its business is to be determined. When that duty is performed, as thereby contemplated, his relation to the receiver and the company under section 8 is terminated. Such duties could only be revived or reviewed by some action of the court, whereby a new or modified or supplementary report might be required as a basis of its action. When the actuary is continued in the employ of the receiver after his report is in, such employment is under and by virtue of section 13, and not of section 8 of said chap. 902, Laws of 1869, and should have the approval of the superintendent of insurance department, and the receiver has the absolute power to discharge from such employment at any time. Approval of a reduction of salary of any such clerk or actuary may be assumed to have been given by the superintendent of the insurance department. The court is not a proper tribunal to fix salaries of clerks and employees of a receiver. It has no power to modify the contract or increase the salary promised. Appeal from an order, made at Special Term, directing the receiver of the North America Life Insurance Company to pay certain moneys to Emerson W. Keyes. Mr. Keyes was appointed actuary of the North America Life Insurance Company, by the receiver, March 28, 1877, pursuant to the requirements of § 8, chap. 902, of the Laws of 1869. The compensation for his services agreed upon, and approved by the Superintendent of the insurance department, was at the rate of $5,000 per year. On the third day of October thereafter he made his report to the court as required by the statute. Mr. Keyes still continued with the receiver, who paid him after the same rate The actuary, provided for by section 8, of until February 1, 1878. At that time |