The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-12-13
Tbs Cele ebyRted Warner Case-Im port at
DeGlslOn,
COURT or COMMON PLEAS-PART SECOND.
lnEora ll.daa nul,

Before Hon Judge Daily.
Eeoror Wa,ner Thomas Warner William B. MoBa
ard Thomas CoTnev, She,i6-At the November special
term Of this court the plaintiff moved for injunction
10 reitn sale of the house and lot at the OF
City Ha place and Duane street formerly occupied ny
Thomas Warner under judgment confessed to Or Mot
fist wbcb she coptended given with Dtsnt to
iIauc bE out OF her future Of support appears
that 10 rhs 1850 Mrs Warner brought suit la the
eupreme Court for divorce against her husband the
ground Of biz aducrous intercourse with Miss Busby,
and in July foo~iDg, obtained report Of DIR. Fowler.
the referee appointed by the court awarding her 5000
Per al:mony-S300 OF which to be-
cured upon the house and lot In question Application
waS to the court to confirm this report and Ia Sep
tmber following Judgment was given, By which Mrs.
Waners lien on tho pr. mises for $780, year was def
pi,ey etsbifhej On the 1lth September "a few days
before this judgmsnt WeiDer confessed judgment TO
DE- Mcfar for So 600 for money lent him the previous
oey having on the 10th Of that month assigned to Dr.
Mofiat al the rest Of his property except such
ss he bad converted into cash. This assignment
made In trust fer Warmers creditors. among
whom were Mise Busby and William II Thompson.
On the day folo wing Warner olsndsstineiy left New
York under fictitious and Europe taking
with him h iss Busby their iegm te children and
leaving Mrs. Warner and her child without any means
Of tuIptrt Brs Warner then commenced this action
set aside the judgment TO Moat and the assignment
to him on the ground that they made 70 defeat her
claim therefore fraudulent and void and charged
Warner s,d MoTst with combining together to deprive
her OF livelihood DR.. Moffat in his snswer alleges
that bs actually advanced the So 600 10 Warner as
nstter cf friendship to assist him and denied any intent
Of preventing Mrs Warner from enforcing her claim
part Of Mrs Warner, Tor Injunction to restrain the
Sheriff from selling the house and lot under the udg.
ment 10 DR. Moffat
Mr jas 4. Brady appeared on behalf of Dr Mor.t
Judge Daily delivered the foil owing opinion:
The Plaintiff has brought this action to set aside the
judgment and assignment fraudulent and the present
motion IS MADE for uncton to restrain the defend
ant Moiat from collecting the debts further inter
ftIng with the property embraced In the assignment aud
TO restrain him the sheriff from selling the land levied
upon advertised for sale upon the execuion issued
under the judgment and for the appointment Of
cevtr with authority to collect the rents issues and
pro6ts o the real estate aud to take possession Of the
property choses in action &c embraced In the assign
Uneor the decree of this awarding the plain
tif alimony, and declaring the alimony awarded a
permeDs charge the real estate OF Thomas War
she has Issued two executions for the OF ali
mtny to which she entitled 26th Of November
1850 which in the hands Of the sheriff ana have
not been returned The feet that the executions have
not been returned uDsatised s far az this
action brought c reach the chooses in action edu
able interest Of Warner included and intended to be
transferred by the assignment The property embraced
in the assignment consists exclusively Of debts due
Warner pecies Of property not susceptible levy
through the equitable po court wbcu the par
ty has exhausted his legal remedy Before q party,
therefore obtain the aid Of this court to set aside
fraudulent assignment Of property not liable to he
seized and sold upon execution but which
y Of chooses in action equitable the debtor
II must appear thst an execution has been issued and
that IT has been returned unsatsfed McElvain va will
lis o Wsnd ts8, ar s. 1T3 sec. IS and So The appl-
cation for isjun this ground sill therefore be
denied But where the object Of the action Is 70 remoy
obstacle frauduleDtly and wrongfuy created but
fer the existence Of which the remedy Law would be
ample II s not essential that execution should have
been returned unsat!shed. In such says Tracy
senator in McEivsin Wis Ia not necessary
by the return Of execution unsatis6ed tbat the
party has exhausted his remedy st law that execution
may be the very instrument by which, when the court
has removed the impediment to s operation, be will
obtain the perfect satisfaction OF his rights Such Is the
car, here The plaintiff seks tn remove the juigme
confessed to Moist, upon ths ground that IL was audu
lent This JUDGMENT being prior In point Of time aud Of
amount sufficient to absorb the property her exesu
ton seione AZ TIRE Judgment stands remains unavailable
But II this court tboud declare the judgment voit all
N ~ Ia mo N
executions are available II the object Of the parte,
when this Judgment confessed hinder delay
de'Bue creditors or other persons then it void
though Mofst may have advanced TO Warner the full
smonrt Of it, Mackic vs. Gavin, Gov $40 2 n g. 23s
GO ard 67 Sd sd Hanford Va Artcher a. Ell 900 snd
think that sufficient appears upon the plesdngs ard
afh5nsite to warrant ths presumption upon motop like
tina that such intent existed Mofal admit. that he
kssv ts. report hsd eeeo made In favor Of the plata