Sheldon, appellant, agt. Albro and Parker, respondents.

branch of that court. It is also the evident policy of the Code to allow two appeals in all cases. If the suit originates in a Justices' Court an appeal is given to the County Court, and from that to the Supreme Court. If a suit originates in the County Court an appeal is given to the Supreme Court and from that court to the Court of Appeals. So, if a cause originates in the Supreme Court the judgment in the first instance is ordinarily rendered upon the direction of a single judge, and from his judgment the parties may appeal to the general term, and from the judgment of the general term to the Court of Appeals. If this case is to be heard at the general term in the first instance there is but one appeal in the cause, and the general policy of the Code is therefore defeated.

Another view of the case relates to the question of costs. These must be allowed as though the cause had been heard in the County Court, without any increased compensation for the increased labor and expense of bringing the cause to a hearing and decision at general term.

There is also a class of cases of frequent occurrence where the argument founded on inconvenience has great force. There are cases of appeal to the County Court which may require a view by the county judge. If such case is transferred to the Supreme Court a view must be had by that court. In some counties no general term is held for several successive years. A case of this kind arising in such county, cannot be heard at a general term in any other county, and must therefore be delayed for years until a term shall be held, in the county.

Appeals are allowed from the decisions of trustees of villages in relation to streets, highways, &c., to the county courts, and which may be brought into the Supreme Court by certificate. Such appeals were given by the following named village charters, viz: Plattsburgh, Lockport, Albion, Flushing, Newburgh, and the former charter of the village of Brooklyn. It is true that these appeals are not under the Code, but to preserve harmony in the system, it is requisite that all appeals of like grade should be heard, if consistent with the rules of law, by the same court.

Churchill agt. Bennett and others.

Without, however, deciding that appeals like the one in this case must be heard at special term, I am clear that it may be heard there; and for the convenience of the courts and suitors therein, as well as to comply with the spirit and design of the provisions of the Code, they should be heard at special term.

The court unanimously resolved that appeals to the County Courts, which are transferred in pursuance of the 31st section. of the act amending the act in relation to the judiciary, passed December 14, 1847, shall hereafter be brought to argument and heard and decided in the first instance, at a special term of the Supreme Court.

SUPREME COURT.

CHURCHILL agt. Bennett and others.

Where in an action to set aside an assignment, made by a judgment debtor of the plaintiff, as fraudulent as against creditors, it was alleged in the complaint that the assignor had, ever since the assignment, had the actual possession of the property assigned, and managed and controlled the same as before the assignment, that the assignees had not had the actual possession, and that there had not been an actual and continued change of the possession of the property; and the defendants, in their answer, alleged that the assignees, immediately after the execution of the assignment, took possession of the property, and that it had at all times since the assignment remained in their possession, and been under their exclusive direction and control, disposal and management, and denied that the assignor had managed and controlled the property, as before the assignment, and also denied all fraud; Held, that the averments in the complaint, as to the actual possession were not answered, and must be taken as true.

No facts being presented, showing that the assignment was made in good faith and without any intent to defraud; Held, that the evidence of fraud from facts admitted, was not overcome by the general denial of fraud; that an injunction against the defendants, to restrain the disposal of or interference with the assigned property ought not to be vacated; and that a receiver should be appointed.

Cayuga Special Term, July, 1853. Motion on the part of the defendants, to vacate an injunction, restraining them from disposing of, or interfering with, assigned property; and a mo

Churchill agt. Bennett and others.

tion on the part of the plaintiff, for an order of reference to appoint a receiver, &c.

D. J. SUNDERLIN, for Defendants.

E. VAN BUREN, for Plaintiff.

T. R. STRONG, Justice. The object of this action is to set aside an assignment, made by the defendant Samuel Bennett, a judgment debtor of the plaintiff, to the other defendants, as fraudulent as against the creditors of the assignor, and to obtain satisfaction of the plaintiff's judgment out of the assigned property. It is alleged in the complaint, upon information and belief, "that ever since the said assignment, the said Samuel Bennett has had the actual possession of all the property as signed," &c.; "that he has, since said assignment, managed and controlled the said property assigned, in the same manner as before such assignment; and that the said assignees have not, nor has either of them, ever had the actual and continued possession of the property thus assigned, nor has there been any actual and continued change of the possession of the property assigned, since such assignment." The defendants have answered the complaint, and in respect to the aforesaid allegations it is stated in the answer, "that the said assignees of the said Samuel Bennett, immediately after the execution of the said assignment, and by virtue of the same, took possession and control of all the notes, accounts, demands, choses in action, and real estate of the said Samuel Bennett, and commenced converting the same into money, to apply in payment of the debts of the said Samuel Bennett, pursuant to the terms of the said assignment," &c. And the defendants "deny that the said Samuel Bennett, since said assignment has managed and controlled the said property assigned, in the same manner as before such assignment, but on the contrary thereof, the said property assigned, has at all times since the said assignment, been under the exclusive direction, control, disposal and management of the said assignees," &c. This, aside from a general denial that the assignment was or is fraudulent, and averments that it was made in good faith, and that the assigned

Churchill agt. Bennett and others.

property was "bona fide surrendered into the possession of the assignees, on the execution of the assignment, where the same has since remained, as hereinbefore specified," is the whole of the answer to the portions of the complaint above given. It is obvious that the alleged facts, that since the assignment the assignor has had the actual possession of the assigned property; that the assignees have not at any time had the actual possession thereof; and that there has not been any actual and continued change of the possession of the property, are wholly unanswered. The assignees may have taken possession of the property, by the assignor as their agent, and yet no actual change of possession have taken place. The answer, in regard to the possession of the property, is entirely consistent with the complaint. The former may be true, having reference to a mere legal possession, and the complaint be equally true, as to the actual possession. As the complaint is not answered, in the particulars referred to, it must to that extent, be taken as true, and if true thus far, as no facts are presented, showing that the assignment was made in good faith, and without any intent to defraud creditors, the injunction ought not to be removed. (2 R. S. 136 § 5.) Griswold agt. Sheldon, (4 Comstock, 581.) The evidence of fraud, from facts admitted, is not so far overcome by the general denial of fraud, as to warrant a dissolution of the injunction.

This aspect of the case is not changed by the affidavit of McCoy, one of the assignees, on which the motion of the defendants is, in part, founded.

It is contended, on the part of the defendants, that the complaint itself is not sufficient to sustain the injunction, as the allegations relating to fraud are upon information and belief, and the affidavit annexed to the complaint is fully answered. It is sufficient, in reference to this position, to say, that the objection to the complaint is obviated by the constructive admission before referred to, of portions of the complaint.

It is unnecessary to express an opinion upon the other questions discussed upon the motion to vacate the injunction.

The motion to vacate the injunction is denied, with ten

Van Benthuysen agt. Lyle.

dollars costs, and the motion for an order of reference to ap point a receiver, &c., is granted.

SUPREME COURT.

VAN BENTHUYSEN agt. LYLE.

A mere irregularity in entering judgment can not be taken advantage of after one year. (See R. S. and Code, § 174.)

Where the plaintiff's attorney received an answer by mail, which he returned because the postage was not paid, and entered judgment as upon default, Held, that all other proceedings being regular, the judgment was not void for want of jurisdiction, but merely irregular.

Dutchess Special Term, June, 1853.-The complaint was served February 25, 1850, so that the time for answering expired on the 17th of March. On the 16th of March the plaintiff's attorney received an answer by mail, but the postage was not paid, and he immediately returned it. On the 21st of March plaintiff's attorney entered up judgment for want of an

answer.

The defendant now moves to set aside the judgment as irregular and void.

L. MAISON, for Plaintiff.

Wм. ENO, for Defendant.

BARCULO, Justice.-The most obvious objection to this motion is presented by the lapse of three years since the proceedings complained of. Considered as an irregularity, it is clear, that the defendant could not obtain relief by motion after the judgment had been entered one year. (2 R. S., and Code § 174;) Whitney agt. Kenyon, (7 How. Pr. Rep., 458;) Park agt. Atwell, (5 How. Pr. Rep. 381.)

The defendant's counsel endeavors to obviate this by claiming that the judgment is void, on the ground that the court never obtained jurisdiction. In this, however, he is mistaken. For if we assume against the balance of testimony, that the