Pratt v. Wertheimer

This is a civil action for damages resulting to the assignors of the plaintiff from a fraudulent conspiracy to cheat and defraud them by the fraudulent purchase of their goods.

When the cause came to trial at the circuit the complaint was dismissed and judgment was directed for the defendants on the pleadings. That disposition of the case assumed the truth of all the allegations in the complaint, and we are to determine whether they set up a cause of action. It is declared in the complaint that the defendants formed and entered into a conspiracy to defraud the assignors of the plaintiff and fraudulently to obtain from them large quantities of goods and merchandise on credit, and before the expiration of the credit and before judgments could be obtained therefor, to make a pretended assignment, giving fictitious preferences, and then dispose of the property so as to put the same beyond the reach of tiie plaintiff’s assignors and still retains the control and custody of the same themselves. Then follows appropriate allegations that all these fraudulent schemes and devices were carried into execution to the damage of the assignors of the plaintiff and that the cause of action has been assigned to him. So the complaint charges a combination to defraud the original parties, resulting in their actual damage and the civil action for a conspiracy was devised for such and similar cases. Without that remedy the silent partners m a scheme of fraud might reap the fruits of their evil devices and fraudulent schemes and escape without payment. The authorities *466in our State concur to uphold such a complaint, and within them it contains a cause of action against the defendants. (Moore v. Tracy, 7 Wend., 229; Place v. Minster, 65 N. Y., 90.)

The judgment should be reversed and a new trial granted, with costs to abide the event.

(dissenting):

When Blun, who sold the goods to Wertheimer & Hershfield, brought his action against them upon contract and recovered a judgment upon contract, he adopted the sale finally as against Wertheimer ,& Hershfield. He could before that rescind the sale for fraud .and take the goods, or he could arrest, by order, for the fraud in the .sale. As to these two defendants there is no case, even if there was a fraudulent intent not to pay for the goods. An assignment of the judgment to the plaintiff carried with it nothing but the judgment. The claims against Rose, Mrs. Wertheimer and J. B. Goodman for ■damages for a conspiracy with the other defendants to present fictitious debts, and thus get the property acquired by the Blun sale is not assignable either as incident to the judgment or independent of it. The judgment cannot be added to and by the introduction of new parties retried or reconsidered in any way.

The judgment should be affirmed, with costs.

Judgment reversed and new trial granted, costs to abide event.-