130 N.Y.S. 932 | N.Y. App. Div. | 1911
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.
The action was brought to set aside a conveyance of real and personal- property by a husband to. his wife as fraudulent and void as to the creditors of the husband, and to have real and chattel mortgages given by the wife upon such property declared fraudulent and void also. The court denied the relief asked for and ordered judgment against the plaintiff for costs:
The conveyance of the real property was made July 13,1907, and of the personal property April 17, 1908. The husband died May 25, 1908. The mortgages were made by the wife at various-times in 1908, after the death of her husband. The plaintiff attacked the consideration for the conveyances by the husband to the wife, and fraud was based mainly upon the want of. consideration and the fact that the husband was indebted to other parties, including plaintiff, and after such conveyances he had not sufficient property left to pay such indebtedness. The plaintiff relied upon the defendants for proof to sustain his action. His complaint was in the usual form, charging the conveyance of all the husband’s property without consideration, while he was largely indebted to others, and he then died insolvent, and that the conveyances' were made with intent to hinder and delay and defraud his creditors. Among other things, plaintiff sought to make proof of facts and circumstances tending to establish these things, but the court excluded much of the evidence offered, apparently Upon the ground that the details sought to be established were not alleged in the complaint. This evidence was improperly-excluded, and. if it had been admitted it would seem that the fraud might have been established and the court would not have found that no fraud was proven. That the facts and circumstances leading to the conclusion of fraud could be proved without alleging them in the complaint was held in Kain v. Larkin (141 N. Y. 144, 151, 152) which was an action wherein the plaintiff sought to have adjudged and declared fraudulent and void as to her intestate a transfer of certain real estate made by one of the defendants to his daughter. The court, among other things, said: “The complaint * * * avers * * * that after the cause of
But the defendants claim this action could not be maintained because plaintiff had failed to demand that the executor of the deceased debtor bring the action before plaintiff brought it himself. This question was raised on the motion for a nonsuit, but the case was not disposed of upon this ground. The court did not pass upon the question at all, but decided the. case purely upon the facts, holding that fraud was not proven. The right to bring such an action as this by one" creditor for the benefit of himself and all other creditors of a deceased person was expressly given by statute (See Laws of 1858, chap 314, as amd. by Laws of 1889, chap. 487, and Laws of 1894, chap. 740; Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 7; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], §232; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 19; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 268), and no provision or condition was contained in either statute requiring the creditor siting, first to request the personal repre
I think the action was properly brought under the statutes, although no request was first made that the executor bring the action. There must be a reversal and a new trial by reason of the erroneous exclusion, of competent material evidence offered by plaintiff.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.