John H. Jacquelin, as Sole Surviving Trustee of the Trusts Created by a Certain Agreement Dated March 23, 1872, Plaintiff, v. Henri L. Jacquelin, Defendant, Impleaded with Minnie A. Jacquelin, Respondent, and J. Charles Walton, Appellant

John H. Jacquelin, as Sole Surviving Trustee of the Trusts Created by a Certain Agreement Dated March 23, 1872, Plaintiff, v. Henri L. Jacquelin, Defendant, Impleaded with Minnie A. Jacquelin, Respondent, and J. Charles Walton, Appellant. First Department, May 31, 1907. Appeal.— judgment creditor’s action — failure of decision to find • assignment invalid — conclusion of invalidity unwarranted. ■ When an appeal in a judgment creditor’s action is based only upon the pleadings, the.decisi'on and the judgment, and there is no case containing the evidence, and there is printed in the appeal book certain requests to find, some marked “found,” and" some “not found,” and the requests “found” are riot incorporated in the decision, the requests cannot be considered, and exceptions to refusals to find raise n.> question in the absence of the testimony. Under such circumstances, where the decision merely finds that a conveyance alleged to be in fraud of creditors was made long before the creditor’s judgment, and there is no finding as to the validity of the assignment, a conclusion that it was invalid is not warranted. Appeal by the defendant, J..Charles Walton, from a judgment of the Supreme Court in favor of the defendant Minnie A. Jacquelih,-entered in the office pf the clerk of the county of New York on the 14th day of March, 1907, upon the decision .of the .court rendered after a trial at the New York Special Term. Robert L. Redfield and John L..IIUI, for the appellant.. David G. Jlirsoh, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: In this action for an interpleader the only controversy is between the defendants J. Charles Walton and Minnie A. Jacqnelin, who both claim a fund held by plaintiff as trustee for Henri L. Jacqnelin. As the foundation of his claim Walton sets up an assignment made to him by Henri L. Jacquelin -on June 1, 1888. 'Minnie A. Jacquelin does not deny the assignment, but on the contrary admits that after contracting the' debt on which her'judgment rests Henri L. Jacquelin made .what she terms a “pretended.” assignment to Walton, and then she alleges that such assignment was fraudulent a id void, because made to hinder, delay and defraud her, and was fictitious, and that in fact no indebtedness existed, but was inserted therein for the purpose of cheating and defrauding her; that no notice of the pretended assignment was given to the trustee until after the recovery of the judgment, and that Henri L. Jacquelin had no other property except that embraced in the pretended assignment out of which her judgment could be satisfied.. She sets up her judgment recovered in March, 1905, and asks that the pretended assignment be declared fraudulent and void as against her, and that the money in dispute be paid to her. Thus by the pleadings it stands admitted that Henri L. Jacqnelin made an assignment of the fund to the defendant Walton hi 1888, and that Minnie A. Jacquelin recovered a judgment against Henri L. Jacquelin in 1905. The only issues presented for trial were those tendered by Miiniie A. Jacquelin attacking the validity of the assignment. The appeal comes to ns upon the pleadings, the decision and the judgment, there being no case oil appeal and none of the evidence. There is also printed in the appeal book a document consisting of some thirty requests to find submitted by the defendant Walton, of which a few are marked “ found,” and the majority are -marked “not found.” .Hone of these can be considered, because these requests marked, “found” have not been incorporated into the signed decision, and the exceptions to the refusal to find the others ■ raise no question in the absence of the testimony. . The decision merely finds the facts relating to the existence of the fund; that it is claimed by Henri L. Jacquelin, Minnie A. Jacquelin and J. Charles Walton, and that Minnie A. Jacquelin is a judgment creditor of Henri "L. Jacquelin by virtue of a judgment, no part of which, has been paid, and upon which execution has been issued and returned unsatisfied. The conclusion of law based upon these findings is that Minnie A. Jacquelin is entitled to receive and have paid to her the amount of the fund free from any claims or demand of Henri L. Jacquelin or J. Charles Walton, and that neither said Jacquelin' nor said Walton have any claims on or title to the fund or any part thereof, and judgment is awarded, and was entered accordingly. The question is whether this conclusion of law is sustained by the admitted facts and the findings of fact. It is apparent that it is not. One of the admitted facts, which required no evidence to support it and no finding to establish it, was that Henri L. Jacquelin had assigned the fund to J. Charles Walton long before Minnie A. Jacquelin recovered her judgment. Upon tlie only issues raised by ■ the.pleadings, to wit, the validity of the assignment as against Minnie A. Jacquelin, there is rio finding at all, and there is, therefore, nothing on the record to impeach its validity. It follows that the conclusions of law and the judgment are contrary to the established and uncontradicted facts. . The judgment must,, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. Ingraham, Laughlin, Clarke and Lambert, JJ., concurred. Judgment reversed and new trial ordered, with costs to appellant to abide event.