Hickok v. Cowperthwait

• Decision Date: 30 December 1913
• Citation: 210 N.Y. 137,103 N.E. 1111
• Parties: HICKOK v. COWPERTHWAIT et al. (two cases).
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 137

103 N.E. 1111

HICKOK

v.COWPERTHWAIT et al. (two cases).

Court of Appeals of New York.

Dec. 30, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Actions by Frank M. Hickok, as receiver of the personal property of Frank H. Cowperthwait, against Frank H. Cowperthwait and others. From judgments of the Appellate Division (147 App. Div. 121, 900,131 N. Y. Supp. 829, 838), affirming judgments for plaintiff, the defendant named and others appeal. Affirmed as to all of appellants except William H. Aymar, as to whom judgment is reversed and a new trial granted.

Bowers & Sands, of New York City (W. H. Van Benschoten and John J. Halpin, both of New York City, of counsel), for appellant William H. Aymar.

Lewis Squires, of New York City (Hector W. Thomas, William D. Hart, and Lewis Squires, all of New York City, of counsel), for appellants Frederick S. Cowperthwait, trustee, and Herman Capelle Co.

Maddox & Maires (Samuel Evans Maires, of Brooklyn, of counsel), for respondent.

MILLER, J.

These are two judgment creditors' actions tried together to set aside as fraudulent certain transfers of stock by the defendant Frank H. Cowperthwait to his son, the defendant Frederick S. Cowperthwait, as trustee. The trial court found that the transfers were made with the intent and purpose on the part of the Cowperthwaits to hinder, delay, and defraud the creditors of Frank. We have reached the conclusion that there was at least some evidence tending to prove the fraudulent intent of both. A serious question arising upon the exclusion of evidence might have been presented by their appeal but for the admissions in their answers.

The alleged fraudulent transfers were made on June [210 N.Y. 141]29, 1904. At that time the defendant Aymar held as collateral security for a debt of Frank 49 shares of the common stock of the Brooklyn Chair Company and 30 shares of the common stock of the Brooklyn Factory & Power Company. On May 25, 1905, Frank received 50 other shares of the common stock of the Brooklyn Factory & Power Company, which were no part of the stocks theretofore transferred by him to his son, and on that day he transferred and delivered to the defendant Aymar 25 of said shares as additional collateral security for the payment of his debt. On the 5th of November, 1906, Aymar returned to Frank the certificates for the 30 and 25 shares, respectively, of the power company's stock. Frank caused them and a certificate for five shares, which stood in the name of Frederick personally and formed no part of those fraudulently transferred, to be canceled, and two certificates for 30 shares each to be issued in the name of Frederick, as trustee. The substituted certificates were thereupon delivered to Aymar. On the 17th of December, 1906, Aymar returned the certificate for the 49 shares of the Brooklyn Chair Company, and Frank caused it and a certificate for one share belonging to him, which was no part of the shares fraudulently transferred, to be canceled and a new certificate for 50 shares to be issued in the name of Frederick, as trustee. The substituted certificate was on December 28, 1906, delivered to Aymar. The trial court did not specifically find for what purpose the certificates were returned by Aymar to Frank, but the uncontradicted evidence, in part documentary, establishes the fact to be that they were returned for the special purpose of having them transferred on the books of the company to Frederick, as trustee, and with the distinct understanding that the substituted certificates, with the addition of the one and five shares, respectively, should when issued, be at once delivered back to Aymar, as was done. The trial court found that on said November 5, 1906, and December 28, 1906, Frank ‘pledged and lodged with and delivered to’ Aymar the said certificates so standing in the name of Frederick, as trustee, and indorsed by him, as trustee, in blank, ‘for the alleged purpose of collaterally securing the payment to said William H. Aymar of an antecedent indebtedness owing by said Frank H. Cowperthwait to said William H. Aymar’; that the original certificates held by Aymar were not surrendered, returned, or delivered by him to the defendant Frank ‘for any special limited or temporary purpose of said William H. Aymar, or for the benefit of said William H. Aymar,’ but were so surrendered, returned, and delivered upon a naked request and solely for the special purpose, use,...