Statement of case.

Woodcock v. Bennett, 1 Cow. 738-9; Newson v. Newson, 4 Ired. 381; Beazley v. Dunn, 8 Rich. 345; Blanks v. Rector, 24 Ark. 496; Herman on Executions, § 89; Park v. Church, 5 How. 381; Douglas v. Haberstro, 88 N. Y. 618; Laws of 1847, chap. 280, § 57; Park v. Church, 5 How. 381; Healy v. Preston, 14 id. 20; Fake v. Edgerton, 3 Abb. 229; People v. Seaton, 25 Hun, 305; People v. Bowe, 20 id. 547; Douglas v. Haberstro, 88 id. 618; Farnham v. Hildreth, 32 Barb. 277; Cutler v. Rathbone, 1 Hill, 204; Laws of 1847, chap. 470, § 43; Hutchinson v. Brand, 9 N. Y. 208; Dominick v. Ecker, 3 Barb. 19; Jackson v. Hunter, 4 Wend. 585; Borland v. Stewart, id. 568; Jennings v. Carter, 2 id. 446; Herman on Executions, $$ 68, 69; Crocker on Sheriffs [2d ed.], 8 284; Earl v. Camp, 16 Wend. 562; Cornell v. Barnes, 7 Hill, 35; James v. Gurley, 48 N. Y. 163; Field v. Chapman, 13 Abb. 325; Field v. Hunt, 24 How. 466; Howard v. Sheldon, 11 Paige, 558; Dunlevy v. Tallmadge, 32 N. Y. 462.) The error in admitting the order appointing plaintiff receiver was quite sufficient to justify the General Term in reversing the judgment of the Special Term. (Josuez v. Conner, 7 Daly, 448; Old Code, §§ 298, 408; Wegman v. Childs, 44 Barb. 403; Coope v. Bowles, 28 How. 10; 42 Barb. 87; Sackett v. Newton, 10 How. 561; De Comeau v. People, 7 Rob. 498, 501; Dubois v. Cassidy, 75 N. Y. 298; Rockwell v. Merwin, 45 id. 166; Vandenburg v. Gaylord, 7 N. Y. Weekly Dig. 136; Kemp v. Harding, 4 How. Pr. 178; Dorr v. Noxon, 5 id. 29; Barker v. Johnson, 4 Abb. Pr. 435; Todd v. Crook, 4 Sandf. 694-5; Kennedy v. Weed, 10 Abb. 62; Crippen v. Hudson, 13 N. Y. 161.) The complaint should have been dismissed at Special Term, on the ground that the order appointing plaintiff receiver confers upon him no title or capacity to bring this action, because not recorded in the office of the register of New York city and county. (Old Code, § 298; Rockwell v. Merwin, 45 N. Y. 166, 168; 8 Abb. [N. S.] 330, 334; Scroggs Palmer, 66 Barb. 505; Laws of 1813, chap. 86; People, ex rel. Kingsland, v. Palmer, 52 N. Y. 83; McKenna v. Edmundstone, 91 id. 231; Whipple v. Christian, 80 id. 523.) The "exten

V.

Statement of case.

sion" of the appointment of the plaintiff as receiver, under and for the benefit of the judgment recovered by the Loaners' Bank was clearly a nullity. (Amore v. Lamothe, 7 N. Y. Weekly Dig. 212; McCulloch v. Norwood, 58 N. Y. 566; Bain v. Illuminated Tile Co., 7 Weekly Dig. 335-6 [Part 3]; Huguenot B'k v. Studwell, 74 N. Y. 621; Code, § 1900; Boyd v. Harold, 18 N. B. R. 433; In re Ettinger, 18 id. 222; Dygert v. Remerschnider, 32 N. Y. 649; Phillips v. Wooster, 36 id. 412; Babcock v. Ecker, 24 id. 630; Reade v. Livingston, 3 Johns. Ch. 500; Wells v. O'Connor, 27 Hun, 426; Corporation v. Gordon, 12 Weekly Dig. 570; Warden v. Browning, 12 Hun, 497-500; Old Code, § 289; 2 R. S. 367, § 24; Neilson v. Neilson, 5 Barb. 565.) The only evidence of fraud in these transfers lies in the fact itself that they were made, which is not enough. (Dygert v. Remerschnider, 32 N. Y. 637, 636; Carr v. Breese, 81 id. 584.) The mere circumstance of Mary Nostrand having allowed the property to stand for so many years in her husband's name is not significant, in view of the fact that it was purchased prior to the passage of the acts enlarging the privileges of married women, and before it had become customary for such women to hold lands in their own names. (Garrity v. Haynes, 53 Barb. 296; Syracuse v. Wing, 85 N. Y. 421; Jaeger v. Kelly, 52 id. 274; Dimon v. Hazard, 32 id. 77; Babcock v. Eckler, 24 id. 623; Prewit v. Wilson, 19 N. B. R. 461.) Her equitable claims upon this property are as great as those of these creditors, who have parted with nothing on the faith of it. (Smith v. Smith, 17 Weekly Dig. 81; Syracuse v. Wing, 20 Hun, 207, 208-209; affirmed, 85 N. Y. 421; Berdell v. Berdell, N. Y. Daily Reg., January 20, 1880; 2 Monthly Law Bulletin, 32; Genesee B'k v Mead, 16 Weekly Dig. 486.) The court erred in admitting in evidence, as against the defendants, John R. Cypert and Mary A. Nostrand, and under their specific objection and exception, the testimony of Elbert Nostrand, in supplementary proceedings, in actions to which they were not parties. (Bennett v. McGuire, 58 Barb. 636; Cuyler v. McCartney, 40 N. Y. 221.) It was error to deny

Opinion of the Court, per RUGER, Ch. J.

the defendants a trial by jury of the question of fraud in the transfers, and of the amount due on the Arnold judgment. (Davis v. Morris, 36 N. Y. 569; Lattin v. McCarty, 41 id. 112; Bradley v. Aldrich, 40 id. 510; Hudson v. Caryl, 44 id. 555; People v. Albany, etc., R. R. Co., 57 id. 161; Freeman v. Atlantic Ins. Co., 13 Abb. 124; Levy v. Brooklyn F. Ins. Co., 25 Wend. 687; Wheelock v. Lee, 74 N. Y. 500; Page v. Cameron. 11 Weekly Dig. 478; Compton v. Compton, id. 325.)

RUGER, Ch. J. This is an equity action brought by the plaintiff, as receiver of the property and effects of the defendant, Elbert Nostrand, to set aside certain alleged fraudulent conveyances theretofore made by said Nostrand to the other defendants herein, and subject the property therein described to the lien of certain judgments.

The plaintiff claimed to derive his authority as such receiver by virtue of his appointment under proceedings supplementary to execution taken in three several actions wherein judgments had been obtained against said Elbert Nostrand. The trial resulted in a judgment against the defendants for the relief demanded in the complaint, but, upon appeai to the General Term, that judgment was set aside and a new trial ordered, solely upon the ground of alleged irregularities in the proceedings under which the plaintiff was appointed receiver. From this order the plaintiff appeals to this court, upon giving the usual stipulation for judgment absolute.

It is competent for the defendants, in support of this order, to urge any other material errors committed upon the trial, even though they were not mentioned by the General Term as among the reasons for its order of reversal.

The appellant has brought to our attention a number of alleged errors in addition to those relied on by the General Term, which he claims entitled him to a reversal of the judg ment rendered by the trial court.

So far as such questions are of sufficient gravity to merit consideration, they will be noticed before proceeding to the

Opinion of the Court, per RUGER, Ch. J.

discussion of the grounds upon which the new trial was ordered.

First. The refusal of the court to award to the defendants a trial by jury upon their request therefor was not erroneous. The action, being solely an equitable one, to remove a cloud upon the title of the property sought to be subjected to the liens of the judgments mentioned in the complaint, did not authorize the defendants, or either of them, to claim as matter of right a trial of the issues therein by a jury. In such cases the court may, in its discretion, frame issues and direct them tried before a jury, but whether they will do so or not is purely a matter of discretion, and their determination of that question is not the subject of review. (Colman v. Dixon, 50 N. Y. 572.)

Second. The claim that the judgment originally entered in the action did not provide for a right of dower claimed to exist in favor of the defendant, Mary A. Nostrand, in the property alleged to have been fraudulently conveyed to her, and that it was in other respects erroneous in form, were questions not properly before the General Term and cannot be raised upon the appeal here. The remedy of the defendants, if any such irregularities exist, is by motion and appeal from the order thereon, if the proper relief is not granted. (Beardsley Scythe Co. v. Foster, 36 N. Y. 561; Binsse v. Wood, 37 id. 526; Buck v. Remsen, 34 id. 383.) The alleged dower right of Mary A. Nostrand is not affected by the judgment rendered herein.

Third. The objection made to the admission of the evidence of the defendant Elbert Nostrand, taken on proceedings supplementary to execution, was not tenable. The defendant Nostrand had been called as a witness for the defendants on the trial and had given material evidence for them. The deposi tion received in evidence was competent not only for a limited purpose as against him as an admission in the case made by one of the defendants therein, but was also competent at the time it was offered as against all of the defendants, for the purpose of affecting the credibility of the testimony given by such witness for them on the trial.

Opinion of the Court, per RUGER, Ch. J.

Fourth. The motion made to strike out the evidence of James W. Culver, a witness produced by the plaintiff, was properly denied. The witness had testified as to the pendency of the Arnold action against Elbert Nostrand at the time of the alleged fraudulent conveyance, and the attempt of said Nostrand's attorney to delay the recovery of a judgment therein. This motion was made upon the ground that it did not appear that Nostrand knew that the case had been placed on the short cause calendar for trial. We think the evidence was proper as tending to furnish a motive, on the part of the debtor, for placing his property beyond the reach of his creditors, and that it may fairly be presumed that a person has notice of the proceedings of his own attorney in a cause where he is the sole defendant.

Fifth. The questions arising upon the evidence affecting the merits of the action, which have been referred to in the brief of defendant's counsel, do not seem to us to be sufficiently serious to require particular mention. The conclusions reached by the trial court upon the facts in the case are supported by the evidence therein, and its conclusions of law predicated thereon do not seem to be open to any legal exception.

It remains, therefore, only to consider the various questions raised affecting the validity of the appointment of the plaintiff as receiver under the several judgments described in the complaint, and his right to represent the plaintiffs in such judgments. In the consideration of these questions it should be borne in mind that the plaintiff is not here asserting any title to, or interest in, either the real or personal property of the judgment debtor by virtue of his appointment as receiver, but is simply seeking to remove a cloud upon the debtor's title to the property in question, so as to subject it to sale on execution. Such an action he is authorized to bring and maintain. (Porter v. Williams, 9 N. Y. 142.) Actions for a similar purpose could as well have been brought and maintained by the plaintiffs in the several judgments in their individual names, as through the intervention of a receiver; and the effect of judgments obtained by them in such actions would have been