| N.Y. App. Div. | Apr 15, 1900
This action was brought by judgment creditors of Karl Hess to set aside a conveyance of land made by him to his wife, Emma Hess,, it being claimed that such conveyance was made with intent to hinder, delay and defraud creditors. The defendant Emma Hess alone answered. After trial of the issues, judgment was directed for the plaintiffs.
The defendant’s position on the trial was, that the property was conveyed to her by her husband in satisfaction of a claim she had ■against him for about $10,000, which amount she gave into his-possession some years before to take care of and save for her. The trial judge decided that the conveyance was made without consideration. We think the proof would have supported the contrary con
The plaintiffs, to establish the fraudulent character of the deed, offered to show that an action having been brought by them in a Municipal Court against Karl Hess, he by his attorney procured the plaintiffs’ attorney to consent to adjournments, and after he had secured the last of them, allowed judgment to be taken by default. In the meantime the conveyance assailed in this action was made. The inference was sought to be drawn that Karl Hess availed himself of the delay to put the property out of his hands so that • a judgment could not be enforced against it. A witness was asked concerning a conversation between him and Karl Hess’ attorney on the subject of the adjournments. The testimony seems to have.been allowed on the ground that it affected the deed and not merely as bearing upon the intent of the grantor. It could not affect the deed if the grantee received it in good faith and for value. It is evident that the ruling was that the intent of the grantor would invalidate the deed. The witness was asked to state what occurred in the Municipal • Court in connection with the action pending therein. This was objected to, the court remarking that it had “ no binding force against the defendant Emma Hess. It is quite material, though otherwise.” Counsel for the defendant then remarked that materiality could not arise unless conspiracy was shown sufficient to connect. Emma Hess with the transaction. Whereupon the court declared that “ she is connected sufficiently by being the grantee in the deed.” Then the objection-was overruled and an exception was taken by the defendant. The court then stated that “ there is no exception needed,- because the court states that it is not binding upon the - defendant. that you represent.” Thereupon the' counsel expressed himself as satisfied. The court added, ■ however, that “ as a conversation or a happening, it has no effect upon her. I do not say that it does not affect the conveyance to her.” Then an exception was taken.
The indication here is quite plain that the court regarded the fact of Emma Hess being the grantee in the deed as sufficiently connecting her with a fraudulent purpose on the part .'of her husband, which
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred ; Ingraham, J., concurred in result.
I think the evidence objected to was competent. Upon the ground that the weight of evidence would require a different conclusion than that reached, I concur in the result.
Judgment reversed, new trial ordered, costs to appellant to abide event.