Hays & Thalheimer; but the court has found that the assignment of this claim was not accepted by William, and that he never made any claim thereunder. The court further found, as facts, that there was no consideration paid by William Thalheimer, or by any one in his behalf, to Ignatz Thalheimer, for the conveyance of the real estate, and that the same was entirely without consideration, except as stated in the decision. The court further finds that, at the time of receiving the conveyances, William Thalheimer had in his possession three notes given to him by Ignatz Thalheimer,-one of which was dated on the 12th day of November, 1879, and was for $2,500; another of which was dated on the 15th day of January, 1880, and was for $3,000; and another of which was dated on the 19th day of April, 1881, for $3,000; but that in fact there was nothing due from Ignatz to William upon such notes. Exceptions were taken to the findings that there was no consideration paid by William for the real estate, and that there was nothing due upon these notes.

These exceptions present the serious questions for consideration upon this appeal. The amount of these notes, with the interest accrued thereon at the time of the conveyance of the real estate to William, was $10,605.76. It was stipulated upon the trial that the value of the real estate conveyed was $11,000. It appears from the evidence that William was a prosperous business man, residing in Louisville, Ky.; that his father, Ignatz Thalheimer, resided in the city of Rochester, and was engaged in buying notes and mortgages, and loaning money. The plaintiff introduced in evidence the testimony of Ignatz Thalheimer, taken before a referee, in which he testified that at the time of the conveyance he owed his son William on the three notes $8.500, besides the interest; that one of the notes was given in 1879; he believed one was given in 1880, and one in 1881; that these notes were given up to him by his son William when he executed and delivered the conveyances of the real estate in question. These notes were, at the request of the plaintiff, produced in court by the witness, and the notes were by the plaintiff put in evidence. and are of the dates and amounts found by the court. Each of the notes was signed by the defendant Ignatz Thalheimer. The witness further testified that each of the notes was given for money loaned to him by his son William; that his son sent him the money from time to time to loan for him. The defendant William testified, in substance, that he advanced money to his father from time to time to invest; that he had an agreement with him that he was to be liable to him for the money so advanced; that he sent the money to him for which the notes were given, etc. This evidence is undisputed. It is corroborated by some of the exhibits, especially that of No. 1, which is a letter dated Richmond, Ky., January 10, 1878, and is a letter from William to his father, in which he states that he sends him by bearer $1,000, which, with the other $1,200, makes now $2,200; and states that his father would have to guaranty this to him; that he could not let it go under any other consideration. It appears to us that under this evidence the trial court erred in finding that there was no consideration for the deeds, and that there was in fact nothing due upon the notes. The learned judge, in his opinion, states that it was not clear just when the money was advanced by William to his father; and then comments upon the discrepancy in the testimony of Ignatz and William as to the dates. But it does not appear to us that this should be conclusive. They each testified that the money was sent from time to time. True, they differed somewhat as to dates; for each relies upon his recollection, and, after the lapse of so many years, it is not strange that their recollection in reference to dates should vary. Indeed, had they agreed perfectly, there might be ground for suspicion that they had concocted a story to aid them in defrauding creditors. The court further proceeds to state that the purpose for which the money was advanced was to lend it for William, and that it was not a loan to Ignatz, and the fact that Ignatz received money to

lend for William did not make him liable to repay the money; that under the evidence of William his father was to guaranty the loans which he made, and that it was a sufficient answer to this to say that such an agreement would be valid only if in writing; that the liability was not made out, because, if there was a guaranty, the guarantor is liable upon it only upon default of the principal debtor, etc. In this view we think the learned trial court has overlooked the fact that Ignatz, on receiving the money, made and delivered to his son promissory notes therefor. The notes made him liable to the sou for the money loaned, with the interest that should accrue thereon. It is true that William stated in his letter that his father would have to guaranty the money sent to him; that he could not let it go under other considerations. But what did he mean by this further than that he should look to his father for the money sent him? The money does not appear to have been loaned out by the father in the name of his son. On the contrary, it appears that, as to some of it, he invested it in real estate, taking the title in his own name. It consequently appears to us that he was liable upon the notes as maker, and that the question in reference to the liability of a guarantor is not involved in the case.

It is contended that the assignment by Ignatz to William of the cause of action against Hays & Thalheimer, for about $15,000, indicates a fraudulent intent on the part of Ignatz. Had this claim been valid for that amount, its transfer, in connection with the real estate, would have vested in William property to the value of about $26,000, which would be largely in excess of any claim which he had against his father; and it would tend to show an intention to hinder and delay the creditors of Ignatz; and, had William become a party to this, the cause of action might have been made out. But the court has found that William did not accept the transfer of this claim, and consequently no inference of fraud by reason of its transfer can exist, so far as William is concerned. If Ignatz actually owed his son William $10,605.76 upon these notes, William had the right to collect that sum; and the payment of him in money, or the transfer to him of property of that value, would not be in fraud of the rights of other creditors.

Upon the trial the defendant William offered in evidence a note executed by Ignatz Thalheimer to Yette Thalheimer for $3,000, together with the bond executed by Ignatz to William. These papers were objected to by the plaintiff, and the counsel for the defendant offered to show that William was liable on his father's note to Yette Thalheimer for $3,000; that his father was obliged to make him good for that liability by the bond; that the payments made by the witness to her were made in good faith, upon these instruments, at his father's request. The objection of the plaintiff was sustained, the evidence was excluded, and the defendants excepted. At the time of the conveyance of the real estate in question it appears that William delivered to his mother 10 promissory notes, of $200 each; that 4 of them have since been paid. It appears that the amount of the principal and interest due upon the notes was something less than the value of the real estate conveyed; and it appears to us that the defendant William had the right to show that he had paid this difference. If he could have shown that Ignatz was owing Yette; that William was liable to Yette for the amount, and that he held the bond of his father as security; and that the 10 $200 notes were delivered to her by the direction of his father, and a part of them had been paid,-it was important evidence, as bearing upon his good faith, and as to whether he had paid full value for the real estate conveyed to him.

The trial court held that the judgment of Yette Thalheimer, recovered against Ignatz Thalheimer, for $8,266.25, was void as against the creditors of Ignatz. The plaintiffs, however, have a right to attack this judgment only upon the theory that it is an apparent lien upon the real estate of Ignatz. It is not a lien upon the real estate if the conveyances to William are valid. It

is only in event that the conveyances to William should be adjudged invalid that it becomes necessary to determine whether this judgment creates a valid lien upon the real estate. We therefore do not, at this time, regard it necessary to consider that question. We do not hold that the evidence did not warrant the conclusion that the conveyances to William were fraudulent as against the creditors of Ignatz Thalheimer; but, independently of the finding upon the question of consideration, effect cannot, on this review, be given to such conclusion, as it is not seen that it was not influenced to some extent by the finding upon that question. The judgment should be reversed, and a new trial ordered, costs to abide the final award of costs. So ordered.

BRADLEY and DWIGHT, JJ., concurred.

CITIZEN'S NAT. BANK OF HORNELLSVILLE v. RIDDELL et al.

(Supreme Court, General Term, Fifth Department. October 19, 1888.) 1. FRAUDULENT CONVEYANCES-CONSIDERATION

EVIDENCE.

In an action to set aside a conveyance as fraudulent, it appeared that the grantor and grantee were brothers and partners in business, and, with two others, owned land, an undivided fourth being conveyed to each. The grantee testified that they were not partners in the land, which was the understanding of one of the co-owners, while that of the other was to the contrary. The land was sold, and the proceeds deposited partly in the firm name and partly in that of the grantee, and checked out by the grantor, upon the agreement, as the grantee testified, to repay him his share, with interest, on demand. The grantor used the money in a hotel business in another state, the title to which, as well as the register and insurance, were in his individual name. All the hotel business was transacted in the grantor's name, and, while there was evidence of admissions by the grantee that he was interested in it, he denied it, and denied making the admissions. The conveyance was made in consideration of the money loaned. Held, that the land was not the firm's property, and that the grantor owed the grantee for his share of the proceeds so used. 2. SAME-INSOLVENCY-FRAUDULENT TRANSFERS.

An insolvent debtor may transfer property to a creditor to pay a debt justly due, and such transfer is not void as to other creditors.1

Appeal from special term, Steuben county.

Action by the Citizen's National Bank of Hornellsville, N. Y., against Leroy Riddell, and Mary E. Riddell, administratrix of the estate of George Riddell, deceased, to set aside conveyances made by George Riddell in his lifetime to Leroy Riddell as fraudulent. Judgment for defendants. Plaintiff appeals.

Argued before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ. Beard & Griffin, for appellant. Eli Soule and De Merville Page, for respondents.

HAIGHT, J.

This action was brought by the plaintiff as judgment creditor of George Riddell to have certain conveyances, assignments, and transfers of property by George Riddell to Leroy Riddell adjudged to be fraudulent and void as against the creditors of George Riddell. The answer is, in substance, on the part of Leroy Riddell, that the conveyances, assignments, and transfers were made and accepted by him in good faith for the purpose of paying debts actually owing to him by George Riddell. It appears from the evidence that George and Leroy Riddell were brothers, and in the month of January, 1864, they entered into a copartnership for the practice of medicine, which copartnership continued down into the year 1884; that the firm name was George Riddell & Co., and from time to time they engaged in other business than the practice of medicine; that in the month of August, 1883, George Riddell had become liable on paper indorsed for one A. B. Vorhis to the amount

1 As to when conveyances by insolvents will be held fraudulent as to creditors, see Burhans v. Kelly, ante, 175, and note; Neal v. Foster, 36 Fed. Rep. 29, and note.

of about $20,000; that Vorhis had become insolvent, and thereafter, and in September, 1883, made an assignment for the benefit of his creditors, and it was then ascertained that George would be liable upon the paper indorsed by him to the amount of nearly $20,000; that thereafter George Riddell sold, assigned, and transferred to the defendant Leroy Riddell all of the assets of the firm upon the agreement that Leroy Riddell would convert the same into money, and pay the debts of the firm, so far as the assets were sufficient to pay such debts. It also appears that at that time the firm was indebted to various persons in the amount of about $15,000; that the nominal value of the assets was about the sum of $18,000, but the actual value was much less than that sum, the exact amount of which does not appear. It further ap peared from the evidence that George Riddell also conveyed to Leroy Riddell several parcels of real estate, and assigned and transferred to him several bonds and mortgages and promissory notes. The trial court has found that these conveyances and transfers were made by George and received by Leroy Riddell for the sole and only purpose of receiving payment of a debt which was then due to him from George Riddell, and that he had no intent to hinder, delay, and defraud any other creditors of George Riddell. It appears that in the year 1867 George Riddell and Leroy Riddell, with Lucius A. Waldo and Lorenzo Davison, became the owners of a large tract of timber land situated in one of the western states; that this land was sold out under contract, and the money derived from such sale was remitted to George Riddell, who paid Waldo and Davison their portion thereof, and the balance, or some portion thereof, was deposited in a bank to the credit of the firm of George Riddell & Co., and some portion of it was deposited in the Canisteo Bank to the credit of Leroy Riddell. It further appears, however, that the money so deposited to the credit of George Riddell & Co., and to the account of Leroy Riddell was checked out by checks of the firm drawn by George Riddell, and was used by him in the Bradford business, of which we shall have occasion to speak further on. It is contended on the part of the defendants that the amount of money collected by George Riddell upon the sale of the western land belonging to Leroy Riddell was the sum of $15,091.19; that it was checked out of the bank by George Riddell upon an understanding or agreement with Leroy Riddell that George might have it to use in his business upon paying interest thereon, and at the time of the conveyances and transfers in question the amount, with the interest included thereon, was the sum of $18,315.52. It is claimed on the part of the plaintiff, in the first place, that George and Leroy Riddell were copartners in their western land transaction, and that the money derived from the sale thereof came to them as copartners, and in the second place that they were also copartners in the Bradford business, so called, and the money that was checked out of the bank by checks drawn by George Riddell was used in such copartnership business, and that consequently George Riddell did not owe Leroy Riddell the sum of $18,000 and upwards, or any other sum. The trial court was of the opinion that the copartnership did not extend to the western lands or to the Bradford business, and found that the indebtedness did exist as claimed by the defendant.

The chief question to be considered upon this review is as to whether such finding is sustained by the evidence. Mr. Davison, one of the parties interested in the western lands, understood that they were copartners, and that they together furnished half of the money to make the purchase, while Mr. Waldo, the other person interested in the lands, did not understand that they were copartners in the land transaction. It appears that each of the parties was deeded an undivided one-fourth interest, and that the contracts for sale were executed by all of them. These facts corroborate the testimony of Leroy, who testified that they were not copartners in the western land transactions, which, taken in connection with the fact that the lands were conveyed to the four owners individually, sustain the findings of the trial court. But

it also appears, as we have seen, that the money was deposited to the credit of the firm, and to the individual credit of Leroy Riddell; while, on the other hand, it also appears that the money was again checked out by checks drawn by George Riddell, so that it becomes important to inquire as to whether the money was again used in the business of the firm, or whether it was used in the individual businses of George Riddell. Leroy Riddell has testified that it was taken by George and used by him in his individual business, under an agreement that he would repay the same upon demand, and would allow him interest thereon. George Riddell had constructed an hotel in the city of Bradford, Pa., which was known as the "Riddell House." He was engaged in running this hotel, and this constituted the Bradford business, so called; and the question is raised as to whether or not they were copartners in this business. Several witnesses testified to conversations in which Leroy had declared himself as interested in the Bradford business. He, however, denies that he was interested, or that he made such statements, and declares that he was not interested in that business. It appears that the title to the property was in George Riddell; that it was conducted in his name; that the register was entitled in his name; that the property was insured in his name; and that produce and provisions for use in the hotel were shipped to George in his individual name. Upon this evidence the trial court found, and we think properly, that the Bradford business was the individual business of George Riddell. This being the case, it follows that the money belonging to Leroy Riddell received by George Riddell upon the sale of the western lands is traced into the hands and business of George Riddell, and no claim is made that it has ever been repaid to Leroy Riddell. It is contended further, however, that the transfers were made with the intent to hinder and delay creditors. George, however, had the right to pay his brother Leroy any debt that was actually due and owing to him, and Leroy Riddell had the right in good faith to collect and receive pay for that which was justly and truly his due. He tells us that he first learned of his brother's indorsing for Vorhis in July; that he became alarmed, and insisted on his brother's paying him the amount due and owing to him at that time, and had frequent interviews thereafter until the conveyances and transfers in question were made; that he had no other motive in the matter than to get his pay, etc. The trial court has believed the testimony in this regard, and, inasmuch as there is nothing to contradict it, we must regard the conclusions of the trial court as conclusive upon this question. As to the transfer of the copartnership property for the payment of the debts of the copartnership, there is nothing before us from which we can determine that there will be any surplus left after the payment of such debts. There is consequently no fraud established in reference to this part of the transaction, and our conclusions are that the findings of the trial court should be sustained. The evidence taken upon the trial, together with the exhibits, is very voluminous. Many questions are raised in reference to the admission and rejection, of evidence. We have examined them all with some care, and are of the opinion that no sufficient reason exists for the granting of a new trial. The judgment should consequently be affirmed, with costs. So ordered.

BARKER, P. J., and BRADLEY and DWIGHT, JJ., concurred.

HARRINGTON v. CITY OF BUFFALO.

(Supreme Court, General Term, Fifth Department. October 19, 1888.)

1. MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS-ICE.

In an action against a city for injuries sustained by a fall on an icy sidewalk, evidence that there was, at the time of the accident, an oval ridge of ice, six inches high, in the middle, sloping to the edges of the walk; that it had snowed three times