Jacob L. Grubel, as Trustee in Bankruptcy of Israel L. Currier, Bankrupt, Appellant, v. John W. Ritchie and Others, Respondents

Jacob L. Grubel, as Trustee in Bankruptcy of Israel L. Currier, Bankrupt, Appellant, v. John W. Ritchie and Others, Respondents. First Department, June 2, 1916. Bankruptcy—suit to set aside mortgage and transfers alleged to have been made to defraud creditors — evidence not establishing fraud or lack of consideration — inconsistent findings—modification of findings by appellate pourt — evidence—parol evidence varying written mortgage—mortgage made payable on demand. Suit by a trustee in bankruptcy to obtain a decree that a mortgage given by the bankrupt to the defendant, and certain other transfers of property, were made with the intent to hinder, delay and defraud the creditors of the bankrupt, and to have the same declared null and void Evidence examined, and held, insufficient to show that the transfers were made to defraud creditors, or were without adequate consideration, and that findings by the trial court establishing absence of fraud and adequacy of consideration were justified. A judgment in such action wilhnot be set aside merely because the trial court made inconsistent findings, for the appellate court may reverse or modify the findings according to the evidence. Where the written mortgage in terms was made payable on demand, and there is no request for a decree reforming the same, evidence of an oral agreement" that the mortgage was not to be payable except on certain conditions is inadmissible, being contradictory to the terms of the written agreement. Appeal by the plaintiff, Jacob L. Grubel, as trustee, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the.25th day of June, 1915, upon the decision of the court dismissing the complaint after a trial at the New York Specia Term. Abraham Aronstein, for the appellant. Edwin J. Dryer, for the respondents. [MAJORITY — Laughlin, J.:] Laughlin, J.: This is an action by the "trustee in bankruptcy of Israel L. Currier to have it adjudged that the defendant John W. Ritchie received a certain mortgage for $12,500 as the agent and trustee of the bankrupt and that he holds the premises No. 213 West One Hundred and Fortieth street, borough of Manhattan, New York, which were conveyed to him for said mortgage, as agent and trustee of the bankrupt, upon the theory that said mortgage was transferred to him with the intent to hinder, delay and defraud the creditors of the bankrupt; and to have it adjudged that a transfer or payment of the sum of $660 and the transfer of certain office furniture of the value of $58 by the bankrupt to Ritchie were null and void, on the theory that they were made with intent to hinder, delay and defraud the creditors of the bankrupt; and to have the defendant John W. Ritchie account for the rents and profits of said real estate, and to have the real estate sold, and for judgment for the amount of said payment and the value of said office furniture. We have examined the evidence in the light of the arguments of counsel and are satisfied that it fails to show that the transfers of the property by the bankrupt to Ritchie were made with intent to hinder, delay or defraud the creditors of the bankrupt, or without adequate consideration. The findings of the learned trial court with respect to absence of fraud in the transactions and adequacy of consideration are fairly sustained by the evidence. We have also considered the errors assigned and find none requiring a reversal and only one which merits discussion in an opinion. The court made apparently inconsistent findings with respect to one material fact. The uncontroverted evidence showed that prior to the fall of 1912, the bankrupt owned a certain bond and mortgage for $10,000, executed by the Eastern Land Company on real estate in New Jersey on the 6th day of August, 1910. By the 6th finding in the decision, the court found that in the fall of that year the bankrupt for a good and valuable consideration assigned that mortgage to the defendant John W. Ritchie, and that title thereto passed to said Ritchie free and clear of all right, title and interest of the assignor; hut by the 6th finding made at the request of the plaintiff, the court found that “prior to and on the 17th day of July, 1914,” the bankrupt owned said mortgage. The evidence showed that the exchange of said $10,000 mortgage with the Absecon Inlet Land Company for said mortgage for $12,500 was negotiated by the bankrupt as the agent of said Ritchie, and that the assignment of the mortgage to Ritchie, not having been recorded, it was determined, with a view to avoiding the expense of recording, to destroy it and to have a new assignment made by the bankrupt acting for Ritchie, and that was made on said 17th day of July, 1914. The court, by the 7th'finding in the decision, found that the said $10,000 mortgage was assigned by said Ritchie on said 17th day of July, 1914, to the Absecon Inlet Land Company in exchange for the mortgage for $12,500. The said 6th finding made for the plaintiff is manifestly inconsistent with the 6th .finding contained in the decision, and with the entire theory of the decision, and is against the weight and preponderance of the evidence. It may be that the two findings could be reconciled on the theory that the one made at the request of the plaintiff was intended merely as a finding that until the time therein stated the bankrupt was the record owner of the mortgage, but whether that is the theory on which it was made, or whether it was made through inadvertence, is immaterial, for this court is no longer required to grant new trials in causes tried before the court on account of inconsistent findings, but may reverse or modify the findings according to the evidence as viewed by the members of the appellate court. (Code Civ. Proc. § 1317; Bonnette v. Molloy, 153 App. Div. 73; 209 N. Y. 167; Lamport v. Smedley, 213 id. 82; Acme Realty Co. v. Schinasi, 215 id. 495; Rives v. Bartlett, Id. 33.) It follows, therefore, that the 6th finding contained in the plaintiff’s proposed findings of fact should be reversed, and the judgment affirmed, with costs. Clarice, P. J., McLaughlin, Scott and Dowling, JJ., concurred. Judgment affirmed, with costs.