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V.

residence, place of business, nor Action to recover property seized business elsewhere.

by the defendant, the sheriff, under He has engaged in enterprises the following circumstances : and accepted positions which would The firm of Winn & Weaver were, seem to necessitate his permanent prior to November 1, 1878, doing residence in this city. On the business as carpet merchants in whole, we

satisfied that the New York. During the several defendant is a resident within the years previous to November 1, meaning of the code.

1878, the firm had borrowed of Order affirmed.

plaintiff, the wife of one of the Opinion by Barrett, J.; Davis, members of the firm, sums of P. J., concurring.

money aggregating something upwards of $11,000. On November

1, 1878, the firm made a formal FRAUDULENT TRANSFER.

bill of sale to plaintiff of the JURY.

property in the store, stock, bills N. Y. SUPREME COURT. GENERAL receivable, notes, &c. Thereupon

TERM. FIRST DEPT. plaintiff went to the store, and einHenrietta S. Weaver, applt.,

ployed one B. to carry on the busiBernard Reilly, sheriff, respt.

ness for her, and B. carried on such

business, was paid by plaintiff, and Decided June 11, 1890.

accounted to plaintiff for the money

received, B. sometimes paying over A sale of personal property not followed by the money himself to her, and at

change of possession to the vendee is presumptively' 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 possession may take place while the property re

issued against the property of Winn mains 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

court, upon

the ground that the equivocal, and different inferences may be 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 possesgood faith of the transaction, upon conflict

sion, as was there held. ing evidence, is for the jury.

H. B. Philbrook, for applt. Appeal from judgment recovered A. J. Vanderpoel, for respt. ou dismissal of the complaint at Hell, That the evidence showed the Circuit.

a change of possession of the propVol. 10-No. 11.

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erty, and therefore there was no This action was brought to obpresumption 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 suf

; 146 ; 3 R. S., 5th Ed., S$ 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 wrongsul acts jury. The court erred in directing until 1878, and then brought this a dismissal.

suit for defendant to account and Judgment reversed.

pay them the overcharges. Opinion by Daniels, J.; Barrett, The court, upon the trial at SpeJ., concurring.

cial Term, gave an interlocutory

judgment for an accounting, overSTATUTE OF LIMITATION. ruling the defence setting up the EQUITABLE RELIEF.

Statute of Limitations—that more N. Y. COMMON PLEAS. GENERAL

than six years had run since the TERM

alleged cause of action. John Carr

W. J. Butler, for plffs. et al., v. Gilbert

Homer A. Nelson, for deft. Thompson

Held, That it is conceded that, Decided June 7, 1880.

under the old Code, the six years' In an action for equitable relief, to wit: on the Statute of Limitations applied, be

ground of fraudulent concealment and over- cause it limited actions for relief charges, and for an accounting, the action upon the ground of fraud to that must be brought within six years, and falls class of actiods which were solely

within § 382 of the Code. It is in the nature of an action at law, although cognizable by the Court of Chan

an accounting is demanded. It was not ne- cery; and it was concede plaintiff cessary to make a demand in order to entitle had a good cause of action at law the plaintiff to commence this actiou.

for the frauds alleged to have been Section 410 only applies to cases where a de

mand is necessary to entitle a person to perpetrated, and that the jurisdicmaintain an action.

tion 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 judgthe 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 has no cause of action on transacthe old Code is omitted in the new; tions prior to December 30, 1872. and we are informed by the note to Section 410 of the Code, only apthe section that such change was plies to cases where demand is nemade to meet the decision in the cessary to entitle a person to maincase of Foot v. Farrington, 41 N. Y., tain an action. In the case at bar 164. It seems, however, upon a no demand whatever was necessary careful reading of the section, that in order to entitle plaintiff to comby the change of the language of mence the action. the section the author of the Code Opinion by Van Brunt, J.; Larrehas failed in attaining the object more and Daly, JJ., concurring. sought for. Tbe language of the sub-division is-'An action to pro

BREACH OF CONTRACT. cure a judgment other than for a sum of money, and on the ground of N. Y. SUPREME COURT. GENERAL fraud,' &c.; and it is urged upon

TERM. FIRST DEPT. the part of the defendant in this ac- Albert Lefler, applt., v. Isaac tion that the sole relief which is Sherwood, respt. sought to be obtained by a final

Decided June 11, 1880. judgment in this action is a judgment for a sum of money. It is true When plaintiff has completed his contract as that, under the interlocutory judg

far as possible, and the neglect of defendant ment, certain equitable relief may

prevents a perfect completion, he may sue for

a breach of the contract, and may recover be obtained ; but, upon the final such damages as he can prove. judgment, the sole relief which can The fact that his complaint is drawn on the be obtained against the defendant is

theory of a completed contract will not

prevent his recovery. a judgment for money.

It seems, therefore, that the causes of

Appeal from judgment entered in action set out in the complaint are favor of defendant, upon dismissal expressly excluded by the terms of of the complaint at circuit. 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

latter.

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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 The pleadings should, if necesand tried.

sary, have been amended or conWhen the teeth were nearly com- formed to the proof, and the case pleted, plaintiff sent for defendant submitted to the jury. to call in and have the final fitting, Judgment reversed, and new trial without which the teeth could not ordered. be completed. This defendant neg- Opinion by Barrett, J.; Davis, lected to do, in spite of plaintiff's P. J., concurring. frequent requests.

The teeth were never delivered.

The complaint alleged the con- ALIMONY. PAYMENT HOW tract, the manufacture of the teeth,

ENFORCED. tender by the plaintiff, demand for

N. Y. SUPERIOR COURT. GENERAL their payment, and defendant's re

TERM. fusal. On the trial the court dismissed the complaint, on the ground

Gano v. Gane. that under the complaint plaintiff Decided June 18, 1880. must prove that the teeth were fully

Where alimony is directed to be paid by a final completed, and that this he failed

judgment, an order that the defendant give to do.

security for the l'uture payment of the same, Edward Gebhard, for applt.

and in default thereof, that an attachment T. F. Brownell, for respt.

issue punishing the defendant as for a Held, That this was not an action contempt, is not proper and will be reversed. for goods sold and delivered, but

at In an action for divorce, the dewas upon a contract to manufacture fendant having failed to pay certa the teeth for a specific price. sums as alimony, as required by the

Plaintiff made the teeth as com- judgment against him, an order was pletely as he could, and only needed made directing him to pay the the presence of defendant to finish alimony," and that he give security them. Defendant repeatedly prom- for the future payment of said $600, ised to call, but failed to do so, ap- and in default thereof that an parently wilfully.

attachment issue punishing said Plaintiff did all that he was bound defendant as for a contempt." 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 pletiou, for, under the present sys- payment of alimony can be enforced tem, a party is not to be turned out by proceedings for contempt.

any time.

to

Held, That in this case the order chap. 902, of Laws of 1869, relating to requiring security for future pay

life insurance companies, is appointed to re

port the condition of the company, from ment to be given was made after

which its solvency and capacity to continue judgment, and was not a part of the its business is to be determined. When that judgment or a modification of it. It duty is performed, as thereby contemplated, did not purport to be either, nor did

his relation to the receiver and the company

under section 8 is terminated. any part of the proceedings disclose the intention on plairtiff's part to

Such duties could only be revived or reviewed

by some action of the court, whereby a move for a modification of the judg- new or modified or supplementary report ment. If the result had been an might be required as a basis of its action. order which, on its face, modified a

When the actuary is continued in the employ

of the receiver after his report is in, such final judgment, the court would

employment is under and by virtue of sechave been called upon to decide tion 13, and not of section 8 of said chap. 902, whether a final judgment could be Laws of 1869, and should have the approval modified by the proceeding that

of the superintendent of insurance depart

ment, and the receiver has the absolute was taken. The proceeding, unless

power to discharge from such employment at viewed as a means of enforcing the judgment, was an independent one Approval of a reduction of salary of any such to compel payment of alimony,

clerk or actuary may be assumed to have and the court had no

been given by the superintendent of the power

insurance department. entertain it. The opinion The court is not a proper tribunal to fix salaries of the Supreme Court in Fark of clerks and employees of a receiver. It

Park, 25 Supreme Court has no power to modify the contract or inReports, 404, entertained the pro

crease the salary promised. ceeding on the ground that the de- Appeal from an order, made at fendant had not complied with the Special Term, directing the receiver direction of the judgment that of the North America Life Insurance security be given, and while it ques- Company to pay certain moneys to tioned, did not reverse, but assumed Emerson W. Keyes. the correctness of Lansing v. Lans- Mr. Keyes was appointed actuary ing, 4 Lansing, 377.

of the North America Life InsurMotion for reargument denied. ance Company, by the receiver,

Opinion by Sedgwick, J.; Curtis, March 28, 1877, pursuant to the reCh. J., and Freedman, J., concur. quirements of $ 8, chap. 902, of the

Laws of 1869. The compensation

for his services agreed upon, and INSOLVENT INSURANCE approved by the Superintendent of

COMPANIES. ACTUARIES. the insurance department, was at N. Y. SUPREME COURT. GENERAL the rate of $5,000 per year. On the TERM. THIRD DEPT.

third day of October thereafter he In re The North America Life made his report to the court as reInsurance Company.

quired by the statute. Mr. Keyes

still continued with the receiver, Decided April 8, 1880.

who paid him after the same rate The actuary, provided for by section 8, of until February 1, 1878. At that time

V.

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