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That, as the plaintiff is informed and believes to be true, the said Chancellor died without having made any will or testament. The said plaintiff avers that he never at any time had any intention of giving the said Chancellor, his beirs, or either of them, any greater sum than to his other children, or to divest himself of the control of his said farm aforesaid, and that, at the time of making the said writing, above referred to, he, said plaintiff, was so enfeebled in body and mind that he did not fully comprehend or understand the terms of the same, else he would not have executed said writing. That the same is the act of the said Chancellor, and not of the said plaintiff, it being the effect of an undue influence exercised by said Chancellor on the enfeebled intellect of the said plaintiff.
Therefore, the said plaintiff prays that said writing be adjudged null and void, and that the personal representatives account to said plaintiff for the rents and profits of the said farm, and that the plaintiff recover possession thereof, or for such other order or relief as the said Court may deem proper to grant, with costs of this action.
To set aside a fraudulent transfer of personal property, in favor of a judgment creditor, praying an injunction and receiver.1
SUPERIOR COURT-CITY OF NEW-YORK.
Coe S. Buchanan and Chauncey Kilmer
agt. Arthur Morrell, John O'Hara, John Camp
bell and Augustine Smith.
Coe S. Buchanan and Chauncey Kilmer, plaintiffs, complain and allege:
First. That on the 2d day of February, 1856, they recovered a judgment, in an action in this Court, against the above named defendant, Arthur Morrell, for $1,654.86, as appears by the judgment roll and proceedings on file in the office of the clerk of this Court; that on the same day the judgment was docketed in the office of the clerk of the city and county of New York, and an execution thereupon against the property of the judgment debtor was duly issued in due form to the sheriff of said city and county.
Second. That the said sheriff has returned the said execution to the clerk of said Court, wholly unsatisfied, as appears by the said execution and the return of the said sheriff endorsed thereon, now on file in the office of the said clerk ; that the said judgment is still wholly unpaid and unsatisfied, and the whole amount thereof, with interest, is due to the plaintiff from the said Morrell.
See, post, Nos. 34, 35, complaints in the nature of a creditor's bill, to set aside fraudulent assignment of property, and to reach equitable assets.
Third. That all the said judgments were recovered upon debts of the said Morrell, contracted previous to the making of the transfer hereinafter mentioned.
Fourth. That the defendant, Morrell, was a manufacturer of blank books and stationery, in the city of NewYork, and kept a store in Park Row, stocked with blank books and stationery, and a factory in said city, with machinery and stock; the value of the said stock in the store being, as the plaintiffs are informed and believe, from $10,000 to $12,000, and of the machinery and stock in the factory being, as the plaintiffs are informed and believe, $14,000 or thereabouts, the said machinery being subject to a chattel mortgage, held by John Campbell & Co., which firm was composed of the said John Campbell and the said Augustine Smith (the said Smith being the active and managing partner of said firm), for $5,500, although the value thereof did not exceed $4,500.
Fifth. That subsequent to the contracting of said debts, and about the month of October, 1852, the said Morrel failed in business, and stopped payment, and in anticipation of the said failure, and shortly previous thereto, he conspired with the defendants, Smith and O'Hara, to dispose of his property, in fraud of his creditors, and to conceal or cover up the same, so that his creditors could not reach it; and, as the plaintiffs are informed and believel in pursuance of this scheme, and with intent to delay and defraud the said creditors, the said Smith and O'Hara mutually arranged and agreed that, after the transfer should be made to O'Hara, as hereinafter mentioned, the mortgage which John Campbell & Co. held upon the
The complaint in this case set forth two other judgments, recovered against the defendant, Morrell, by other parties, and assigned by them to the plaintiffs, with the proceedings by execution, &c., upon the same, in all respects similar to the foregoing.
said machinery should be foreclosed, and the property sold and bid in by the said Smith, and that the deficiency, then existing between the amount of the mortgage and the price bid, should be paid to the said Smith by the defendant, O'Hara ; and that, as the plaintiffs are informed and believe, the defendants, Smith, O'Hara and Morrell, further arranged and agreed, that all the property in the said store and factory should be transferred and delivered to the defendant, O'Hara, at the nominal price of $8,000, or thereabouts, which the said O'Hara should pay in notes, and Morrell should use in effecting favorable compromises with his creditors; that, as the plaintiffs are informed and believe, it was further arranged and agreed between the defendants, that the defendant, O'Hara, should go on in his own name with the business previously conducted by Morrell, and should employ Morrell as managing agent at a nominal salary of $1,000 a year—that the business should be thus continued for two years, to give Morrell an opportunity to buy up, at a low rate, the claims against him, held by his creditors, and at the end of that time O'Hara should pay over and redeliver to Morrell all the residue of said property and effects, and the proceeds and profits thereof, after deducting $4,000 a year for his own compensation, and the amount of the notes given by him as aforesaid ; and it was further arranged and agreed, that if the defendant, Morrell, could procure a purchaser of said property, at a fair price, the said O'Hara should sell the same to said purchaser in his own name, and, after making the deductions above mentioned, should pay over the balance to the said Morrell.
Sixth. That, as the plaintiffs are informed and believe, in pursuance of this arrangement, the defendant, Augustine Smith, foreclosed the mortgage and bought in the property at $4,000, and immediately transferred the same to O'Hara, who paid him $5,500 therefor, that being the amount of
said mortgage, which amount the said Smith received for, and paid over to, the said firm of John Campbell & Co.
Seventh. That, as the plaintiffs are informed and believe, also in pursuance of said arrangement, the other property of Morrell in the factory, and that in the store, was transferred by Morrell to O'Hara, for the said sum of $8,000, paid in notes as aforesaid, who continued in the business, employing Morrell as managing agent; and the said O'Hara has made a large profit thereon, and at least $5,000 a year, and that the said O'Hara still continues in said business, and in possession of the said goods and property, or the proceeds and profits thereof.
Wherefore the plaintiffs demand judgment, that the transfer of his property, by the defendant Morrell to the defendant O'Hara, may be adjudged fraudulent and void, as against the plaintiffs ; and that the said defendant, O'Hara, be enjoined and restrained from selling, assigning, or in any way disposing of the machinery and stock in said blank book manufactory, transferred to him by said Morrell, or said Smith, and the goods and stock in the store transferred to him by said Morrell, or the proceeds and profits thereof; that a receiver may be appointed to take possession of the said property, and the proceeds and profits thereof; that the said O'Hara may be compelled to account to said receiver for the profits of said store and manufactory, since the said transfer; that the said John Campbell and Augustine Smith may be compelled to pay over to said receiver $1,500, being the sum received by them over and above the amount that the mortgaged machinery brought at the sale, and that the property taken possession of by said receiver, or collected by him, may be sold and appropriated to the payment of the judgments held by the plaintiffs.
FIELD & SLUYTER,