Neuberger v. Keim

• Decision Date: 31 May 1892
• Citation: 31 N.E. 268,134 N.Y. 35
• Parties: NEUBERGER et al. v. KEIM et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 35

31 N.E. 268

NEUBERGER et al.

v.KEIM et al.

Court of Appeals of New York,

Second Division.

May 31, 1892.

Appeal from supreme court, general term, first department.

Action by Emil Neuberger and others against Henry G. Keim and others. From a judgment of the general term affirming a judgment dismissing the complaint on its merits, plaintiff appeals. Affirmed.

David Hays, for appellants.

Arthur Furber, for respondents.

HAIGHT, J.

This action was brought to set aside certain deeds on the ground that they were made with the intent to defraud creditors. The defendant Henry G. Keim was the owner of an interest in certain real property situate in the city of New York, of the value of about $5,000, and on the 28th day of December, 1883, he voluntarily conveyed the same to the defendant Kate Boller, who on the same day conveyed the same to the defendant Mary A. Keim, the wife of the defendant Henry G. Keim, and which deeds were on the 31st day of December thereafter recorded in the office of the register of the city and county of New York, in Liber 1,768 of Conveyances, at pages 163-165. At the time of these conveyances the defendant Henry G. Keim was engaged in the manufacture of flowers and feathers for the millinery trade, and was possessed of personal property, consisting of stock in trade, fixtures, furniture, bills, notes, book accounts, and the good will of his business, and there is no proof that his then liabilities exceeded the value of his property. He had, however, prior to such conveyance, had negotiations with one J. B. Sweeting, of Rochester, N. Y., for the purchase of his retail millinery business in that city, and in the course of such negotiations had stated to Sweeting that he was the owner of the real estate conveyed as aforesaid. On the 9th day of January, 1884, Keim and wife visited Sweeting at his store in Rochester, and then agreed upon the terms of purchase; and on that occasion Keim, in the presence of his wife, for the purpose of obtaining credit, again stated to Sweeting that he was the owner of the real estate before mentioned. Sweeting, believing the representations concerning the ownership of the real estate, sold to Keim his stock of millinery goods in Rochester for the price of $9,500; $500 to be paid in cash, and $9,000 on a term of credit running nine years, secured by notes in part made by Keim indorsed by his wife, and in part notes made by his wife and indorsed by himself. Keim took possession and carried on the business in the city of Rochester until the 15th day of June, 1885, at which time he made a general assignment for the benefit of creditors. In the mean time a fire had occurred in his store, destroying the greater portion of his stock of goods. The plaintiffs are judgment creditors of Keim, and their judgments were recovered for goods sold and delivered to him in the spring of 1885 for his millinery business in Rochester. The trial court found as a conclusion of law that the deeds mentioned are good and valid conveyances as against the plaintiffs, and vested the title of the property in the defendant Mary A. Keim, and refused to find that Keim at the time of executing the deed was insolvent, or that he made the conveyance with the intent to hinder, delay, and defraud his creditors in the business in which he was about to engage in Rochester, including the plaintiffs.

The representation made by Keim to Sweeting at the time of the purchase of the millinery stock in Rochester might be the subject of criticism, and indicate a fraudulent intent to cheat and defraud him, were it not for the fact that the notes given to secure the payment of the purchase price bear the signature of Mrs. Keim, the then owner of the real estate. It is...