Opinion
June, 1913.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
Judgment affirmed, with costs, on opinion of Giegerich, J.
The following is the opinion of Giegerich, J.:
It was held by the Appellate Division upon the appeal from the judgment rendered after the first trial that the facts then adduced in support of the plaintiff's case were sufficient to cast upon the defendant Harris the burden of establishing the bona fides of the transfers to her. ( Littmann v. Harris, 148 App. Div. 31.) The same ruling must equally be held to apply to the present record, unless in the course of her examination and cross-examination as a witness for the plaintiff the suspicious features of the case were sufficiently explained to relieve her from the necessity of offering testimony on her own behalf — for none of any consequence was offered by her after the close of the plaintiff's case. Upon this point, after comparing the evidence on the present trial with the summary of the evidence contained in the opinion of the Appellate Division, my conclusion is that the defendant Harris is not in any materially better position than she was on the first trial. There are too many contradictions between her testimony on this and on former occasions, and the absence of books, records and documentary evidence covering the period when the transfers were made is too suspicious a circumstance to permit the acceptance of her attempted explanations as satisfactory evidence; and the plaintiff was not bound by her explanations. ( Becker v. Koch, 104 N.Y. 394.) When a person in substantial control of a corporation resigns his office, rids himself of his holdings of stock and then acquires by transfer to himself all the assets of the corporation, he must at least take care to provide himself with and to preserve the clearest possible evidence that every step in the transaction was unobjectionable and that creditors were not injured. The defendant Harris has failed to sustain in this respect the burden which the circumstances of the case cast upon her, and there must be judgment for the plaintiff for the amount of his former judgment, with interest, and with the costs of this action. ( Murtha v. Curley, 90 N.Y. 372; Decker v. Decker, 108 id. 128.) Submit, with proof of service, proposed findings and judgment in accordance with these views.