(concurring).
This expression of views supporting and concurring in the reversal of the order dissolving the attachment is designed, I, to set forth the conclusions of Judge SWAN and myself upon the proper interpretation of New York law as to the requisite intent to defraud creditors on a debtor’s transfer of property needed to sustain an attachment and, II, to add some further views of the writer in amplification of the conclusion that plaintiff has shown, at least prima facie, a tort liability of the defendant partnership for inducing a breach by the DeAngelis corporation of the latter’s contracts for the sale of tallow to plaintiff.
*127I.
In the three transactions relied on by plaintiff as showing fraudulent transfers, set forth in Judge CHASE’S opinion, it is obvious that DeAngelis was pledging or otherwise transferring assets of the partnership as a means of effectuating the transfer of his business interests to Adolf Gobel, Inc. As appears from our earlier opinions, this was a method of correcting the unfavorable financial position in which he found himself. In these steps, plaintiff’s contracts for the purchase of tallow need not have figured largely, perhaps no more than that they should be ignored because of overriding exigencies arising from other quarters; at least there is here no showing — as there could hardly be by any stranger to the negotiations — that the corporate obligations to plaintiff were explicitly in DeAngelis’ mind when he made the partnership transfers. Plaintiff argues that, since a person must be considered to intend the natural consequences of his acts, this must be held to constitute “actual” fraud; and in the long history of the law as to conveyances in fraud of creditors there is authority to this effect. See discussion and cases cited in 38 Yale L.J. 822, also statements such as that from Coleman v. Burr, 93 N.Y. 17, 31, quoted below. But there developed over tile years a neater and perhaps more realistic approach, first through the use of presumptions and then of statutory equivalents to proof of actual intent. New York has been well supplied with such statutes, of which the important earlier ones are N.Y. Personal Property Law § 35, McK.Consol.Laws, c. 41, and N.Y. Real Property Law § 263, McK.Consol.Laws, c. 50, going back to legislation of 1829, R.S.(1829) pt. 2, c. 7, tit. 3, § 1, originally enacted in 1787, 1 Greenleaf’s New York Laws 381-386, 2d Ed., and based on the English Statute of Fraudulent Conveyances, 13 Eliz. c. 5 (1571). These statutes were repealed in 1925 with the enactment of the Uniform Fraudulent Conveyance Act, N.Y. Debtor and Creditor Law §§ 270 et seq. The attachment statute, N.Y.C.P.A. § 903, goes back through the N.Y. Code of Civil Procedure § 636 to legislation of 1857, 2 Laws of N.Y. c. 723, pp. 554-555 (1857). The statutory authority for the present proceeding is therefore the uniform act and the attachment statute properly read together as parts of a related whole.
Judge CHASE, in conclusions with which we agree, holds the transfers fraudulent as to partnership creditors under § 8 of the uniform act, N.Y. Debtor and Creditor Law § 277, which declares: “Every conveyance of partnership property and every partnership obligation incurred when the partnership is or will be thereby rendered insolvent, is fraudulent as to partnership creditors,” if made without fair consideration to the partnership. Allied provisions are § 273, making every such conveyance or obligation fraudulent as to creditors without regard to actual intent if made without fair consideration and rendering the maker insolvent, and § 275, making every such conveyance or obligation incurred without fair consideration fraudulent as to both present and future creditors when the maker intends or believes that he will incur debts beyond his ability to pay as they mature. We need not, however, consider the applicability of these provisions, since we are all agreed that the protection of § 277 extends to the plaintiff here; contrary to defendants’ assertion, we hold that plaintiff was a creditor of the partnership (as that term is broadly defined by § 270) from the time of the partnership’s tortious acts, which antedated the making of the fraudulent conveyances. Leifer v. Murphy, 149 Misc. 455, 267 N.Y.S. 701; Gatto v. Boyd, 137 Misc. 156, 241 N.Y.S. 626; Marcus v. Kane, 2 Cir., 18 F.2d 722.
The final relevant provision of the uniform act is § 9, N.Y. Debtor and Creditor Law § 278, which provides: “Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may * * * b. Disregard the conveyance and attach or levy execution upon the property conveyed.” The provision of the attachment statute, N.Y.C.P.A. § 903, here immediately pertinent is the requirement that the plaintiff “must also show that the defendant * * * 3. If a natural person or domes*128tic Corporation, has removed or is about to remove property from the state with intent to defraud his or its creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent.” The argument made on these enactments is that the “intent to defraud” of the attachment statute is an “active” intent; and since the uniform act cannot be thought to have added a new ground of attachment, the fact that a conveyance may be fraudulent as to the maker’s creditors under the act is not sufficient to render it attachable, notwithstanding the quoted provisions of § 278(b). This argument we reject.
Consistent with its general purpose and construction — see 1 Glenn, Fraudulent Conveyances and Preferences 460 (Rev.Ed. 1940) — the cases have uniformly held that conveyances must be set aside without regard to actual intent when one or more of the provisions of the uniform act are satisfied. See, e. g., Sabatino v. Cannizzaro, 243 App.Div. 20, 275 N.Y.S. 677; Hearn 45 St. Corp. v. Jano, 283 N.Y. 139, 27 N.E.2d 814, 128 A.L.R. 1285; Feist v. Druckerman, 2 Cir., 70 F.2d 333. True, these are cases more directly dealing with the setting aside of such conveyances and we find no decision which as yet considers the question of attachment in the light of the provision of the N.Y. Debtor and Creditor Law § 278(b). But the attachability of the property under the same circumstances would seem clear not only because allowance of the lesser provisional remedy by reason and logic would seem to follow a fortiori from the grant of the greater and substantive remedy, but also because the statute expressly so says and any other holding would substantially nullify an important remedial enactment. And if there must be found necessary conflict between the two governing statutes, it would appear that in any event the later act should prevail both because it is later and clearer and because it is a uniform act which should be uniformly applied and not made subject to special exceptions in a particular state.
This conclusion is sufficient to require reversal of the order below. But we are unwilling to suggest so much confusion in the New York law; for we think the attachment statute in the N.Y. Civil Practice Act is properly construed as entirely consistent with the uniform act. The question has arisen because certain cases under the former have seemed to stress the requirement of actual intent. But these were cases where the “rules of evidence” or the presumptions which had developed under the statute of Elizabeth would not operate and hence are entirely natural and consistent with the analysis we are presenting. In J. H. Mohlman Co. v. Landwchr, 87 App.Div. 83, 83 N.Y.S. 1073, reliance for attachability was sought (but not upheld) in a failure to meet the formalities of the Bulk Sales Act. So in Casola v. Vasquez, 147 N.Y. 258, 41 N.E. 517, the court refused to infer an intent to defraud from the giving of a preference, not exceeding the value of the debt sought to be paid, noting that preferences were not fraudulent under the common law and that there was here no such fraud as was contemplated by the statute of Elizabeth and similar statutes. On the other hand, Lukens Iron & Steel Co. v. Payne, 13 App.Div. 11, 43 N.Y.S. 376, 378, holds actual intent to defraud not required where the statute voiding the conveyances “lay[s] down a rule of evidence by which their fraudulent character could be determined.” There the statute, derived from the provisions of 2 R.S. 136, § 5 (1829) and Laws 1833, c. 279, cf. the former N.Y. Personal Property Law § 36, declared a chattel mortgage upon property the possession of which is retained by the mortgagor to be presumptively fraudulent and void unless it is filed. Schumann v. Davis, C.P., Gen. Term, 14 N.Y.S. 284, is to the same effect; and see also Vietor v. Henlein, Gen. Term, 1st Dept., 34 Hun 562, 564, and Citizens’ Bank of Perry v. Williams, Gen. Term, 5th Dept, 59 Hun 617, 12 N.Y.S. 678, reversed on another point in 128 N.Y. 77, 28 N.E. 33.
These cases all point to the correct rationale which is made more explicit in the Payne case when it says that the provision for filing chattel mortgages “was introduced as an exception to the rule, which grew up under the statute of Eliza*129beth and is embraced in the Revised Statutes, that a paper transfer of title, secretly given, without change of possession, was prima facie evidence of a fraudulent intent to defraud the creditors injured thereby,” citing the famous Twyne’s Case, 3 Co. 80b (1601). Since Twyne’s Case, the rule has been general that retention of possession upon a sale of goods is a badge of fraud. 1 Glenn, Fraudulent Conveyances and Preferences 60S, 606 (Rev.Ed. 1940) ; see also the act for the filing of chattel mortgages, N.Y. Lien Law § 230, and the Sales Act, N.Y. Personal Property Law §§ 106, 107.
Any doubts as to the validity of this rationale which connects the traditional words of act “with intent to defraud” with the interpretation given the phrase in its source authority, the statute of Elizabeth, just as intimated in Casola v. Vasquez, supra, 147 N.Y. 258, 41 N.E. 517, should he put at rest by consideration of the consistent line of cases interpreting the fraudulent conveyances statutes in effect in New York before the adoption of the uniform act in 1925. These statutes used this same classic phrase, albeit in the more stately form oí the English original — “with the intent to hinder, delay or defraud creditors” — see, e. g., the former N.Y. Personal Property Law § 35 and N.Y. Real Property Law § 263. In the actions to set aside fraudulent conveyances under these older laws, the courts uniformly held that no actual intent to defraud need be shown if fraud upon creditors was the natural and inevitable consequence of the conveyance. Coleman v. Burr, 93 N.Y. 17; Smith v. Reid, 134 N.Y. 568, 31 N.E. 1082; Cole v. Tyler, 65 N.Y. 73. A clear exposition of the applicable principles appears in the Coleman case, supra, 93 N.Y. 17, at page 31: “[T]he claim is made that here there is no finding by the referee of a fraudulent intent; but that on the contrary he has found the whole transaction to be fair and honest, lie has, however, found facts from which the inference of fraud is inevitable, and although he has characterized the transactions as honest and fair, that does not make them innocent nor change their essential character in the eye of the law. Mr. Burr must be deemed to have intended the natural and inevitable consequence of his acts, and that was to hinder, delay and defraud his creditors.”
An interpretation of the classic phrase, as used in its historic sense, in the attachment statute as well as elsewhere would seem therefore compelled by history and precedent; and such a conclusion would avoid the obvious anomalies of the contrary interpretation. Applying the law as stated in these precedents, there can be no question but that there was an adequate showing of the requisite intent to hinder or defraud.
II.
Although reversal here is adequately sustained by the conclusion, in which I concur, that dissolution of the DeAngelis corporation pursuant to agreement with Gobel constituted prima facie a tortious interference with plaintiff’s contracts, yet the question of intent or possible “justification” for such interference has already loomed so large that I think some further amplification desirable to avoid misunderstanding.
First. I would express adherence to the view I have stated in my previous opinion of January 20 that such an interference occurred somewhat earlier on the partnership’s transfer of its big packing plant to Gobel which operated to take away from the corporation its place and means of operation. The suggestion so vigorously pressed that this failing corporation, having its expected source of supply of tallow to fulfill its contracts with plaintiff thus destroyed, could nevertheless go out in the market and freely buy enough to take care of its burdensome obligations seems to me to rest upon a completely unrealistic appraisal of any actual possibilities. Interference with contract relations by making the promisor’s performance more difficult, even though not absolutely impossible, is surely adequate for operation of the legal principle. 46 Col.L.Rev. 1039.
Second. It is desirable to place the question of intent and justification in correct perspective. Thus while there have been expressions suggesting that such interference with contractual relationships *130is or must be “malicious,” yet these are affairs of business competition where the matter of personal ill will is hardly important and the question must be rather — as pointed out below — one of “merely purposeful interference without justification.” In fact a leading New York case states the principle succinctly and clearly thus: “[O]ne who, having knowledge of an existing valid contract between others, intentionally, knowingly, and without reasonable justification or excuse, induces one of the parties to the contract to breach it to the damage of the other party, is liable in an action to recover the damages suffered.” Hornstein v. Podwitz, 254 N.Y. 443, 448, 173 N.E. 674, 675, 84 A.L.R. 1.
Perhaps the most useful and authoritative analysis of the subject is to be found in 4 Restatement, Torts, §§ 766 et seq. (1939), for which Professor Harry Shulman served as Reporter.1 According to § 766, the wrong is done when one “without a privilege to do so, induces or otherwise purposely causes a third person not to * * * perform a contract with another.” The comments illustrate the critical words and clarify the kind of intent requisite for liability. Thus Comment d, while stating that the rule “applies to any purposeful causation,” continues : “It is not necessary, however, that the purpose to cause the breach of contract or failure to deal be the actor’s sole or paramount purpose. It is sufficient that he designs this result whether because he desires it as an end in itself or because he regards it as a necessary, even if regrettable, means to some other end.” And Comment m points out that “ill will” toward the person harmed is not an essential condition of liability; the actor “may be liable even when he acts with no desire to harm the other.” And as to the often cited requirement of malice it is said: “But the context and course of decision makes it clear that what is meant is not malice in the sense of ill will but merely purposeful interference without justification.”
Later sections discuss the nature of the privilege which may excuse the otherwise tortious act. It is made quite clear that the situations suggesting a possible privilege do not give rise to an absolute right. Thus a privilege may be accorded a competitor, but competition does not necessarily justify the act, § 768; the outcome depends on an amalgam of several factors going to balance “the social interests in protecting the expectancy on the one hand and the actor’s-freedom of action on the other hand,” § 767.2
This approach leaves room for differing results, but does avoid any arbitrary rule of thumb, permitting the courts to weigh the competing factors. Obviously the more direct and planned the interference, the more easily will the courts find liability. It is clear that the actor cannot excuse himself merely by showing he intended to benefit himself and had no ill will. In the present case, excuse is sought by reason of DeAngelis’ own private needs for himself and his business, including his partnership. But so direct and so necessarily planned was the interference that the conduct, it would seem, is not to be excused. The timing of the various steps is rather conclusive. The first three contracts with plaintiff were made several days after *131the partnership’s negotiations with Gobel had led to agreement. That the agreement itself could become finally effective only upon approval by the Gobel stockholders, an event occurring shortly after the first three contracts with plaintiff were executed, docs not change DeAugelis’ earlier knowledge and intent. Knowing that he had made performance impossible, DeAngelis went ahead to make the contracts of sale by his corporation to plaintiff. The reason seems clear enough: the desire to make an offer attractive to Gobel. Hence Gobel could see a going and not a failing business to be acquired by the negotiations with the partnership, including the blotting out of the corporation.
It is true that a full trial may develop other and pertinent facts. But unless such trial will change the picture substantially, I think we should not indicate further basis or hope for the defense of justification. There is one more matter, namely, how far such matters of business justification gain strength because occurring through use of the device of the business corporation. Thus it is urged that stockholders may dissolve their corporation, in conformity with statute, without incurring liability for inducing the corporation not to perform its contracts. This is an interesting question; but there seems substantial authority upon it, and the overriding principles are not hard to state, whatever be the problems of their application. Indeed, one might deduce them from general propositions of corporate law; the corporate form of doing business is a useful instrument, but its abuse will be avoided by familiar devices, of which piercing the corporate veil is quite pertinent. So it is quite clear, and often reiterated, that directors, officers, and others interested in a corporation and acting in good faith in the corporate interest are not to be held for corporate actions which may constitute breaches of contract. See, e. g., Said v. Butt, [1920] 3 K.B. 497, 11 B.R.C. 317; Lukach v. Blair, 108 Misc. 20, 178 N.Y.S. 8, affirmed Lukach v. Reigart, 192 App.Div. 957, 182 N.Y.S. 935; Hicks v. Haight, 171 Misc. 151, 11 N.Y.S.2d 912, and other cases cited in the annotations in 26 A.L.R.2d 1270. But the cases indicate their own natural limitations. Actions at variance with corporate needs and for individual benefit are subject to the ordinary rule for tortious misconduct. A succinct statement is made by Mr. Commissioner (later Chancellor and Mr. Justice) Oliphant in Pennington Trap Rock Co. v. Pennington Quarry Co., 22 N.J.Misc. 318, 38 A.2d 869, 871: “The existence of a corporation should never be allowed to shield an individual who is in control of that legal fiction from the consequences of tortious acts maliciously ordered or directed by him to be done and perpetrated through that instrumentality.”
Another often cited opinion, particularly valuable for its analysis of New York cases, is that of Judge Goddard in Vassardakis v. Parish, D.C.S.D.N.Y., 36 F.Supp. 1002, 1005; his decision upholds a complaint charging a corporation’s general manager with inducing breach of plaintiff’s employment contract with it. Judge Goddard agrees that an officer of a corporation “who, in good faith and believing it to be for the best interest of the corporation, seeks to have the corporation breach its contract with a third party, should be absolved from a suit of this character for the reason that his acts are not without justification.” But after pointing out the allegations that here the officer was acting for his own interest against those of the corporation, he concludes that “it would be unconscionable to allow such a defendant to cloak himself with immunity merely because he was an employee or officer of the corporation.”
This law is supported not only by the cases he cites, but by others. A notable decision by the learned and lamented Justice Shientag upholding such a complaint against a corporation’s president is Morris v. Blume, Sup., 55 N.Y.S.2d 196, affirmed 269 App.Div. 832, 56 N.Y.S.2d 414. Another important case is that of Navarro v. Fiorita, 271 App.Div. 62, 62 N.Y.S.2d 730, affirmed 296 N.Y. 783, 71 N.E.2d 468, and approved in the note in 46 Col.L.Rev. 1039, against a corporation’s general manager. See also Eisenberg v. Rodless Decorations, Inc., Sup., 106 N.Y.S.2d 822, 828, *132per Mr. Justice Breitel, and cases cited in the annotation, 26 A.L.R.2d 1271.
On this statement of the law there would seem no doubt of the result which is indicated on this record. DeAngelis and his partnership were clearly and shrewdly acting in their own interest and letting the no longer useful corporation go hang. There is no benefit to the corporation to justify these acts, and liability therefore is tolerably clear on the facts so far disclosed.
For the sake of completeness I should add a word about the appealability of the order here in issue. The original opinion held an order vacating an attachment to be appealable under Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, 19 A.L.R.2d 630. But that case was in admiralty; further, while the Court speaks of that as a collateral order, it nowhere cites or discusses the amendment to F.R.C.P., rule 54(b), effective in 1948. I prefer to put my vote in favor of appeal-ability here on the operation of that amended rule; while the judge did not make a finding of finality in the very words of the rule, he did so in substantial effect, staying the operation of his order for the very purpose of this appeal. His intent being so clear, it would be bootless to send it back for a better formulation of the appeal formula. While some authorities suggest that so-called “collateral” orders are appealable in any event, see Moore’s Federal Rules 1951, pages 253-255, there is considerable doubt as to what orders fall within this category, sometimes little more lucidly described as “offshoots” of the original case; one may perhaps query whether such direct safeguarding of the remedy as an attachment may not be thought something more than an “offshoot” of the original case.3 At any rate we have treated such orders as within the compass of amended F.R. 54(b). See Lyman v. Remington Rand, 2 Cir., 188 F.2d 306; Phelan v. Middle States Oil Corp., 2 Cir., 203 F.2d 836.
The result is, as stated in the Per Curiam herewith, that the order dissolving the attachment will be reversed, and the attachment will stand.
. Other statements along similar lines appear in Harper, Interference with Contractual Relations, 47 N.W.U.L.Rev. 873; 6 Corbin on Contracts § 1470 (1951); Prosser, Torts 980-982 (1941); 46 Col. L.Rev. 1039. Professor Carpenter’s article, Interference with Contract Relations, 41 Harv.L.Rev. 728, 745-762, first carefully analyzed the issue of justification in terms of internally flexible categories of “privilege” in a statement thus somewhat more complete than the still earlier article, Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663.
. “Whether a privilege of invasion exists depends upon whether it is of greater moment to society to protect the defend- . ant in the invading activities than it is to protect and guard the plaintiff’s interest from such invasions. An evaluation and balancing of the social import of the conflicting interests of the respective parties and of the social interests per se are involved.” Carpenter, Interference with Contract Relations, 41 Harv.L.Rev. 728, 745. See also Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv.L.Rev. 307, 314.
. Indeed, the Swift case suggests, 339 U.S. at page 689, 70 S.Ct. at page 865, that an order upholding an attachment is not collateral.