[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 580 When this case was before this court on a former appeal (129 N.Y. 1) the conclusion was reached that the judgment went in favor of the plaintiffs on the ground that the bill of sale to William H. Beck and the general assignment to Weinberg, constituted one transaction and, as such, were in contravention of chap. 503 of the Laws of 1887, invalidating preferences in an assignment for the benefit of creditors, except to the amount of one-third of the net value of the assigned estate. And it appearing from one of the findings of fact made by the trial court that William H. Beck, at the time of the execution and delivery to him of the bill of sale by Louis P. Beck, his father, was in ignorance of any existing intent on the part of the latter to make a general assignment for the benefit of his creditors, it was held that the act of 1887 did not apply, and the security received was not invalidated by the subsequent act of the debtor in executing the assignment. The complaint also contained allegations of fact upon which it based the claim that these instruments were executed with the intent to hinder, delay and defraud creditors within the meaning of those sections of the statute relating to fraudulent conveyances (2 R.S. 137, §§ 1-8), and it appears that the counsel for the respondents urged that the judgment should be affirmed upon that ground. His contention was not sustained, and we quote the reason assigned by the court: "There are many other facts testified to before the trial court, and not herein alluded to, which the counsel for plaintiffs claims are evidence of actual fraud on the part of the defendants herein, within the statute relative to fraudulent conveyances. The findings of the court, as we have seen, go upon the ground that the intent of the debtor to violate the statute of 1887 *Page 581 was a fraud, and hence a hindrance and delay to creditors. The actual fraud has not been found and we do not feel like disposing of this case upon a fact not found or passed upon by the court below, while repudiating the real ground upon which the judgment was founded. The actual fraud claimed by the counsel for the plaintiffs may be proved on the new trial and if found as a fact by the court or jury, will dispose of the case in favor of plaintiffs."
On the retrial it was found, among other things, that William H. Beck and Louis P. Beck, for a long time prior to the execution of the bill of sale and assignment, connived and conspired together to cheat and defraud the creditors of said Louis P. Beck, and that the bill of sale and assignment were one transaction, and both were made for the purpose and with the intent of said Louis P. Beck to hinder, delay and defraud his creditors, of which said intent the defendant William H. Beck then had actual knowledge. The record contains evidence tending to support such findings, and the General Term having by its judgment affirmed them, they are controlling in this court.
The judgment should be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.