Truesdell v. Bourke

• Decision Date: 19 March 1895
• Parties: TRUESDELL v. BOURKE.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 612

40 N.E. 83

TRUESDELL

v.BOURKE.

Court of Appeals of New York.

March 19, 1895.

Appeal from supreme court, general term, Fourth department.

Action by John W. Truesdell, as administrator of John Fitzgerald, deceased, against Hannie L. Bourke, as administratrix of William J. Bourke, deceased. From an order of the general term (29 N. Y. Supp. 849) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Louis Marshall, for appellant.

C. G. Baldwin, for respondent.

O'BRIEN, J.

This action was commenced in May, 1885. The original defendant was William J. Bourke, a Catholic priest, and the pastor of the Church of St. John the Baptist in Syracuse, who died in April 1887, and the present defendant is the executrix of his will, having been substituted as defendant after the death of her testator, and after the action had been pending for more than two years. The parties seem to agree that the action is brought under chapter 314 of the Laws of 1858, which gave a new remedy to the administrator of a person who died insolvent, by permitting him to ‘disaffirm, treat as void, and resist all acts done, transfers or agreements made in fraud of the rights of any creditor.’ This, of course, refers to transfers of property made by the deceased in his lifetime, and the administrator is authorized to question them, or to set them aside in behalf of creditors, though they may have been binding upon the deceased himself. It is quite clear that the complaint states a case within the statute. It alleges that one John Fitzgerald died intestate and insolvent on the 28th of February, 1882, and then, after stating that the plaintiff was appointed his administrator on April 11, 1882, and that deceased at the time of his death owed debts in a large amount, which he was unable to pay, it proceeds to aver and state the actionable facts as follows: ‘That, being so indebted, and with intent to hinder, delay, cheat, and defraud his said creditors, and being then the owner of and in possession of about $8,000 in money, the said John Fitzgerald deposited it in a bank in Syracuse, in the name of one Kate Fitzgerald, keeping in his possession and under his control the bank book representing said deposit. * * * The plaintiff further alleges that said Kate Fitzgerald, shortly after the death of said John Fitzgerald, discovered said bank book among the effects of said deceased, and wrongfully and unlawfully took the same, and drew out said money from said bank, and appropriated the same to her own use, with the intent to cheat and defraud the creditors of said John Fitzgerald out of the same, and without any claim or right, title, or interest therein.’ It then avers that in March, 1882, the defendant received from Kate Fitzgerald the sum of $1,000 so deposited, in bad faith, with intent to hinder, delay, and defraud creditors, and with knowledge of all the facts.

There can be no doubt with respect to the character and scope of the action. It is based upon allegations of actual fraud perpetrated first by Fitzgerald in depositing the money to the credit of his niece, Kate, then by her in procuring the bank book and drawing it out, and finally by Father Bourke in receiving it from her in bad faith, with knowledge of all the facts, and with the intent to defraud creditors. All these allegations of the complaint were put in issue by the answer, and the fundamental objection to the judgment which the plaintiff has recovered is that the complaint is unproved, not in some particular or particulars only, but in its entire scope and meaning, and hence it is not a mere variance, but a failure of proof. Code, § 541. There is not the slightest proof in the case that the deceased debtor ever deposited any money in any bank to the credit of his niece or any one else, or that he ever saw the pass book, or that she ever had it, or drew any money from any bank, or that either she or Father Bourke had any knowledge that the deceased owed any one a dollar at the time of his death. It was shown that the debts of the deceased existed in judgments of long standing, which had been docketed in the clerk's office, and that all the parties to the fraud alleged lived in the same ward, and attended the same church; but surely this could not be either actual or constructive notice of the facts constituting the fraud. There is, indeed, proof of two facts in support of the complaint. One is that the deceased debtor was insolvent, and the other is that Father Bourke received from Kate, the niece of the deceased, about a month after his death, the sum of $1,000, in performance of a promise which the uncle had made to him some months before, to contribute that sum in aid of the building of a parochial schoolhouse upon the church property; but that was only one step in the direction of establishing the allegations of the complaint. It appeared that the deceased clergyman paid this money upon a mortgage which a savings bank held against the church property on the 8th of July, 1882. The learned trial judge, under the objection and exception of counsel for the defendant, submitted two questions to the jury: First, whether Father Bourke, when he received the money, was a party to the alleged fraud, of which, as we have seen, there was no evidence upon which that fact could have been found; secondly, whether, though innocent of any fraud or wrong when he received it, he had not received notice of the fact constituting the alleged fraud before he paid the money upon the mortgage, and, if he had, then he was liable. There was no proof of any actual notice to him of the fact at any time or in any form. The complaint alleged, and the answer admitted, that before the commencement of the action, which was on May 28, 1885, the plaintiff demanded the money. This it should be observed was nothing more than a bare demand, without any information as to the facts upon which the plaintiff's right was founded. The defendant was the treasurer of the church, and, if he received it in good faith, he was guilty of no wrong in paying it over, unless, at the time, he knew that some other person had a better right to it in law or equity. In such cases it would seem to be reasonable that a demand should be accompanied with information as to the facts. Gillett v. Roberts, 57 N. Y. 34. The learned judge, following the theory of the complaint, instructed the jury that if, at the time the payment was made upon the mortgage, the...