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[Vol. 38.

It appears that when that money was advanced it was received by Friend as a payment upon the mortgage and was so indorsed, and that the mortgage had been reduced to $2,500. When the conveyance was made, on the 5th of October, 1895, it was made subject to this mortgage, then stated to amount to only $2,500. After that conveyance, therefore, the mortgage lien was reduced to $2,500 and was no more. Weiser, the plaintiff here, who had advanced the money to make the payments, had no claim upon the mortgage, because he had taken a deed of the land as payment for the amount of his advances. There was no way, therefore, in which the lien of the mortgage could be said to be more than $2,500, and that was the amount and the sole amount which Wright would have been required to pay had he, as a judgment creditor, desired to pay the mortgage and become subrogated to it, as he very probably might have done had the title to the property still remained in Mrs. Weisel.

The judgment creditor's action was brought about the 9th of April, 1896, that being the date on which the complaint was verified. It was tried in February, 1897. At the time of the trial Weiser, as appears by his bill of particulars, had paid everything that was due upon this mortgage, and the total amount of his payments, principal and interest, was $6,318, of which $3,700 of principal and $675 of interest was the consideration for his conveyance. He did not seek in the judgment creditor's action either that the conveyance should be permitted to stand as security for the money advanced by him, or that he should be reimbursed what he had paid while in possession of the premises to satisfy this incumbrance. If he had actually made these payments as a consideration for the conveyance and had not been actually guilty of the fraudulent intent, the proof of these payments would undoubtedly have required the court either to dismiss the complaint as to him, or if, for any reason, the court had determined that there were suspicious circumstances as to the fairness of the transaction, so that equitably the judgment creditor should have been permitted to have recourse to the property for the payment of his debt, it would have decreed that the conveyance to Weiser should stand as security for the amount of his advances, as was done in Dunlap v. Boyd (1 Johns. Ch. 478). But if the conveyance was fraudulent and Weiser was a party to the.

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fraud, he was not entitled to any protection and the conveyance would be held absolutely void and would not be permitted to stand as security for any purpose either of indemnity or of reimbursement. (Davis v. Leopold, 87 N. Y. 620; Baldwin v. Short, 125 id. 553, 554.) The same rule applies as to moneys paid upon the incumbrance while he was in possession of the property, claiming to own it under his fraudulent conveyance. (Railroad Company v. Souther, 13 Wall. 517, 523.)

This question, however, might have been determined in the action brought by Wright to set aside the conveyance, and Weiser might have litigated there the question whether, as a purchaser in good faith, he was entitled to hold this conveyance either as the absolute owner, free from the lien of the mortgage, or, if not that, yet as an incumbrancer to the amount of the payments which he had made in good faith without intent to defraud. It is a well-settled rule that a judgment between two parties is conclusive, not only as to matters actually determined therein, but as to all matters which might have been determined in the action as inhering in or growing out of the alleged cause of action. (Bracken v. Atlantic Trust Co., 36 App. Div. 67; Reich v. Cochran, 151 N. Y. 122.) All questions as to the right of Weiser to have allowed to him the moneys which he had advanced as a consideration for this conveyance, or as payments made by him in good faith to diminish incumbrances upon the property, might have been decided in that action if a proper case had been made; and it was his duty to ask for such an adjudication. As he did not ask for it, the judgment there utterly precludes his obtaining it here, and the learned justice was right in so determining.

But if the case were an open one and the judgment were not a bar in that regard, yet it undoubtedly is a conclusive adjudication that the conveyance by Mrs. Weisel to Weiser was made in fraud of her creditors, and that both grantor and grantee were parties to that fraud. So much is directly adjudged by it. The determination of that fact was absolutely essential to the rendition of the judgment which, without it, could not have been made. Weiser, therefore, started as against these parties upon the foreclosure of this mortgage with a determination conclusive against him that the conveyance which he received from Mrs. Weisel was fraudulent.


[Vol. 38. He testified on this trial that the consideration for that fraudulent conveyance was the money which he had paid for Mrs. Weisel's benefit to Friend, and which was applied to reduce this mortgage. That fact was found by the justice, and the finding was undoubtedly sustained by the evidence. When he received the conveyance upon such consideration, he ceased to have any claim against Mrs. Weisel for her debt to him, because he had taken the property for that debt. He had no recourse against Wright to have the mortgage declared as a security because he was a fraudulent participant in the conveyance. When he took the conveyance in payment of his debt, the debt was extinguished, and unless he can revive it, he cannot have any standing to be subrogated to the amount paid upon the mortgage, because the right to subrogation arises solely out of the fact that some one owes him for the money which he paid to reduce the mortgage. But he cannot revive the debt against Wright, because the proceeding by which the debt was paid was with intent to defraud Wright, and for that reason the court will not hear Weiser to say that it is valid for the purpose of procuring a lien upon this land. He could not do it in the judgment creditor's suit, nor ought he to be permitted to do it in this suit, for he asks here precisely the same relief that he would have asked there had he desired the conveyance to stand as security, and he can only obtain that relief through, and because of, a decision that the conveyance was fraudulent. He asserts that he is the equitable owner of the mortgage because of money which he paid for the benefit of Mrs. Weisel to reduce the incumbrance. The defendant answers that that money was paid by a conveyance of the premises, which is a perfect answer. But Weiser replies that the conveyance of the premises was set aside as to him, because he took it with intent to defraud Wright, and that for that reason the debt should be reinstated. The answer to that is, that he can only obtain this relief by showing that he was a fraudulent grantee, and, therefore, that the alleged payment of the debt was in fact no payment. There is thus no way in which this fraudulent grantee can assert his right to this money without showing the fraud which he attempted to commit, and asking to be relieved from a situation into which he was put by his own fraudulent and dishonest act at the expense of the very persons whom he tried to defraud. In such a case a court of equity

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will not help him, but will leave him in the situation in which his dishonest act has placed him. (Pom. Eq. Juris. § 401.)

The judgment of the court below should, therefore, be affirmed, with costs.

VAN BRUNT, P. J., BARRETT and O'BRIEN, JJ., concurred; INGRAHAM, J., concurred in result.

Judgment affirmed, with costs.


Perjury when a deposition states facts from which it may be inferred that the false
testimony was willfully and knowingly given —false imprisonment.

In an action to recover damages for false imprisonment, the plaintiff claimed that the deposition upon which the warrant was issued did not charge any crime, and that for that reason the police justice acquired no jurisdiction; that, therefore, all the proceedings were void, and that the defendant who induced the police magistrate to act by his application for the warrant was liable as a trespasser.

The deposition stated that the plaintiff committed perjury by swearing falsely in a matter material to the issue upon a hearing before a justice of the Eighth District Civil Court, but did not state, in terms, that the false testimony was willfully and knowingly given - the false statement alleged being that the plaintiff having been asked on November 12, 1894, "Didn't you swear, in Jefferson Market Police Court, that you had complained to Mr. Smith about sights you had seen there?" answered, "No, sir." The deposition further stated that on the 13th of October, 1894, in the Jefferson Market Police Court, the plaintiff herein was a witness and was asked the following question: "Have you ever complained to Mr. Smith of the character of that house?" to which the plaintiff replied, "Yes, sir." That the plaintiff was then asked, "What did you see there?" to which he replied, "I told him I had seen a woman partly nude at the windows on that floor that was on the other side of us."

Held, that as the magistrate must have inferred that the plaintiff knew on the 12th of November, 1894, what testimony he gave on the preceding thirteenth of October, there was sufficient in the deposition to warrant the justice in concluding that the evidence was willfully given, and in issuing the process upon which the plaintiff was arrested, and that the justice having acted within his jurisdiction, the defendant was protected by the warrant and was not liable for false imprisonment, even had he taken such a part in the arrest as would constitute him a trespasser, had the warrant been void;




a170 NY 561


[Vol. 38.

That if the plaintiff had forgotten in November the testimony that he gave the preceding October, it was a matter of excuse which it was not necessary should be negatived in the deposition. BARRETT and PATTERSON, JJ., dissented.

APPEAL by the plaintiff, Nathan Kranskopf, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of February, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Leopold Leo, for the appellant.

George M. Curtis, for the respondent.


The action was brought for false imprisonment, and the plaintiff's complaint was dismissed at the close of his evidence, and from the judgment entered upon that dismissal of the complaint he takes this appeal.

It appears that on the 11th day of January, 1895, the defendant appeared before a police justice of the city of New York, and applied for a warrant to issue against the plaintiff for an alleged perjury. The information in writing was signed and sworn to by the defendant, upon which the warrant was issued and the plaintiff was arrested. A hearing was had before a police magistrate, at the end of which the plaintiff was discharged from custody, the magistrate holding that the crime of perjury had not in fact been committed by him.

After his discharge he brought this action against the defendant who instigated his arrest, as he says, for false imprisonment. The grounds upon which the plaintiff bases his right to recover are, that the information upon which the warrant was issued did not charge any crime, and for that reason the police justice acquired no jurisdiction; and, therefore, all the proceedings were void, and the defendant, who set the police magistrate in motion by his application for the warrant, was liable as a trespasser. The information upon which the police justice acted is set out at length in the complaint. The statute regulating the procedure in such cases requires that when an information is laid before a magistrate, of the com

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