#### Charles Putzel, as Receiver, Resp’t, *v.*Richard L. Shulhoff *et al.,*App’lts.

*(New York Superior Court, General Term,*

*Filed February 6, 1890.)*

Judgment—Decision—Oodb Crv. Pko., § 1023.

In the absence of a decision directing the judgment to he entered, as required hy § 1033 of the Code, a judgment entered after a trial hy the court without a jury is entirely unauthorized, and should he set aside.

Appeal from judgment in favor of plaintiff.

*Stephen C.*Baldwin, for app’lts; *Wm. King Hall*and *Albert*Bach, for resp’t.

Ingraham, J.

This action was commenced by plaintiff as re' ceiver of the choses in action, equitable assets and the property of Richard L. Shulhoff, appointed by the city court of New York in supplementary proceedings, under § 2464 of the Code, to set aside the assignment made by said Shulhoff to one Lowe for .the benefit of creditors, and a transfer by said Lowe to the defendant Krause, and by Krause to the defendant Clara Shulhoff, of all the assigned estate, on the ground that the said assignments and transfers were made with intent to hinder, delay and defraud creditors.

The action was tried at special term by the court without a jury, and the record shows that certain requests to find were presented by plaintiffs and by the defendants. Such requests were passed upon by the court as required by § 1023 of the Code. No-decision of the court appears to have been filed as required by § 1022 of the Code.

That section requires that the decision of the court or the report of the referee upon the trial of the whole issues of fact must state separately the facts found, and the conclusions of law, and it must direct the judgment to be entered thereupon. •

This section does not appear to have been followed. It appears by the record that a judgment was subsequently entered.

It adjudges the assignment void, and it directs the defendants to forthwith account for, pay and deliver all the money and other property assigned to said Lowe, and subsequently transferred by a bill of sale to the defendants, Krause and Shulhoff, and the value and proceeds thereof, and also the policies of insurance thereon or any part thereof to the plaintiff at his office, to the . extent of the amount of the judgment recovered in the action in ' which plaintiff was appointed receiver.

It also further directs that the defendants, Richard L. Shulhoff and Clara Shulhoff, do forthwith account for, pay and deliver to -the said receiver, at his office aforesaid, all the moneys alleged to have been saved by the defendant, Clara Shulhoff, out' of allowances made to her by said defendant, Richard L. Shulhoff, for household expenses, and which savings she had in her possession .at the time of the execution of said assignment, and which amount to upwards of $500, to the extent of the aggregate amount of said judgment with interest thereon, and with the legal fees of the plaintiff, as receiver of the goods as aforesaid.

*27It further orders that the plaintiff have a valid lien upon all such property and money in whosoever's hands the same may be; and the judgment also directs a personal judgment against defendants for the amount of the plaintiff’s claim, with interest and costs.

If the judgment was in a condition for review, we do not think that all of its provisions could stand.

If the plaintiff is entitled to a judgment against the defendants jointly, an accounting is unnecessary and improper. If an accounting is necessary the judgment is interlocutory, and there should be no formal judgment until the accounting has been had.

The judgment contains no provisions for an accounting before a referee or other officer appointed for that purpose, but by the judgment the plaintiff seems to occupy the position of plaintiff, who is to receive the money, referee, who is to pass upon the extent of the defendants’ liability, and receiver, who is to execute the judgment, and all this by a formal judgment, which provides for no report to the court nor method of review if the decision of the plaintiff, in favor of himself, should not be satisfactory to the defendants. I do not think this is in accordance with the practice in cases of this character.

Nor do we think that the provisions of the judgment that the policies of insurance on the property transferred, to the defendant Clara Shulhoff should be transferred to the plaintiff or are subject to the claim of the creditors. The policies were not taken out for the benefit of the judgment debtor or his creditors and were not paid for with his property.

In *Loos*v. Wilkinson, 113 N. Y., 500; 23 N. Y. State Rep., 282, it was held that insurance taken out by a fraudulent transferee of property which was taken out for his own benefit could not be enforced in favor of the creditors.

Nor do we think that on the evidence the defendant Clara Shullioff was liable to the plaintiff for the money that she had saved from the money she had given her for household expenses.

The evidence shows that money to have been given to her by her husband long before he was insolvent, and we think it belonged to her.

Nor do we see any evidence to justify the provision that the plaintiff have a valid lien on all the property, etc., of the judgment debtors. We think, however, that there has been no decision of the case as required by § 1022, and that we should not review the provisions of that judgment

Whether this judgment was entered by the court or was entered by the clerk under § 1228 of the Code does not appear, but in the absence of a decision of the court directing the judgment to be entered it appears to be entirely unauthorized.

I think, therefore, the judgment should be reversed, with costs to the appellant to abide the event, and the case remanded to the special term to be decided as provided for by § 1022 of the Code.

Sedgwick, Ch. J., and Freedman, J., concur.