(dissenting):
I think this judgment should be affirmed. I do not see how upon the facts found by the learned justice at the Special Term, and which *472were clearly warranted by the evidence, the case can be distinuished. from the case of Cole v. Millerton Iron Co. (133 N. Y. 164). It is undisputed that the sale by the Commercial Steam Laundry Company to the'defendant was made, with the intent to close out the business of that company. The defendant purchased all the plant; it took over all the customers and business of the Commercial Company and left nothing except • a few books and accounts,- the value of which nowhere appears but which it is quite-evident was not sufficient-to pay the debts of the company of which the plaintiff was receiver. For this transfer, the necessary effect, of which was to put it out- of the power of the Commercial Company to do any other business or to pay its debts, the defendant gave to the Commercial Company no consideration whatever.. It agreed to issue to that company $20,000 of the par value of its stock. Had - that been done,, so that as a result of this transfer the Commercial Company. had become the owner of the stock, which possibly might have been worth enough to pay its debts, ■ it is quite likely that this transfer could not be attacked; But it was not done. No stock whatever was issued to any' officer of the Commercial Company, but the payment was made to a person who not only had no official connection with the company as an officer, but against, whom a creditor of that company could only recover by an action to set. aside the transfer. The. effect was that the creditors of the Commercial. Company were deprived of an opportunity to resort to the property of that company to pay their debts. This- was done not. bnly with the consent but with the active co-operation of the defends ant. There can be no doubt that such a transfer Would operate just as it did operate to defraud the creditors of the Commercial Com-, pony out of their debts. I see no reason why the defendant, which. not. only permitted this to be done, but took an active part in it, should not be -held liable for the result of -its' action.
For this reason I think the judgment should be affirmed. .
Judgment reversed,- new trial ordered, costs to appellant to. abide-event. . ,-