183 A.D. 763 | N.Y. App. Div. | 1918
This is a creditor’s action, seeking to set aside, as fraudulent, a certain conveyance made by Robert I. Baldwin, deceased, to his wife, the present personal defendant who has since remarried. The action has been tried three times. On the first trial the jury disagreed. Upon the second trial,before the court without a jury, the plaintiffs recovered. An appeal to this court resulted in a reversal of the judgment. (172 App. Div. 283.) The third trial has resulted in a judgment dismissing the complaint, the learned court in an opinion holding that the case presents no substantial change from the facts as they appeared upon the second trial, and that, under our holding upon the former appeal, no cause of action is established. The plaintiffs appeal from the judgment.
If we were right upon the former appeal there can be no doubt that the learned court at Special Term has properly disposed of this case. The plaintiffs urged, however, that we erred in suggesting a limitation upon the rule as laid down by the Court of Appeals in Kerher v. Levy (206 N. Y. 109), and that the present judgment should be reversed.
Assuming that the rule relied upon is operative to the full extent, it goes no further than to hold that a voluntary conveyance of property by one indebted at the time is presumptively fraudulent as against existing creditors, while neither the pleadings nor the evidence tend to show that any of the plaintiffs in this action were existing creditors at the time of
The complaint proceeds, however, upon the theory that the transfer was fraudulently made to defeat the claims of future creditors, and it is not to be doubted that such an action would he if the facts were proved. But no presumption of fraud arises from a merely voluntary transfer in favor of those who become creditors subsequent to that event; the fraud must
The judgment appealed from should be affirmed, with costs.
Order unanimously affirmed, with costs.