103 Misc. 66 | N.Y. Sup. Ct. | 1918
This is an action to charge certain real estate in the city of Schenectady, paid for by James F. Hooker and deeded to Mande E. Hooker, his wife, with payment of a judgment recovered in January, 1916, by plaintiff against J ames F. Hooker. In
(a) The matter of obtaining an option on the property in Schenectady by the defendants Hooker, Corser and Whittaker and how far the company was entitled to claim the benefit of that option, Proctor making one claim in reference to it and the defendants making another claim about it, as to just how the company might be affected by that option and what the company’s rights were in respect to it;
(b) What would be the action that Hooker, Corser and Whittaker would take with reference to the property and business of the company, as to whether it would be carried on in Brattleboro or be transferred to Schenectady, and just how extensively under certain conditions the defendants would avail themselves of the trade of the company, that they claimed to have established. These were the principal subjects of discussion;
(c) The fidelity of the salesmen of the Hooker, Corser & Mitchell Company to Corser. The subject of whether the defendants Hooker, Corser and Whittaker should engage in the overall manufacturing business in case Proctor bought their stock was also discussed;
(d) The contract of November 1, 1902, and the rights of Proctor on the one hand and the rights of Hooker, Corser and Whittaker on the other hand thereunder. ■
The Schenectady Realty Company, on August 4, 1909, executed a deed to the defendant Maude E. Hooker of a lot in the city of Schenectady, and on October 26, 1909, executed another deed to her of a lot adjoining the former lot, for which lots defendant James F. Hooker paid the sum of $9,836.20. Upon these lots a dwelling-house was erected between September 15, 1909, and the spring of 1910, the cost of which was paid by the defendant James F. Hooker in the sum of about $20,000. These two lots and the house thereon were a gift to Maude E. Hooker by her husband. At the time they had two children living and the property became the family home. At the time of this gift, James F. Hooker had paid all of his debts in Vermont, except those covered by the Vermont and New York judgments. He was a stockholder of the Mohawk Overall Company, in which he owned $35,000 of stock, par value, for which he paid in cash. He had also considerable other property. The conspiracy found to exist in the Vermont action was entered into prior to this gift, but the only accrued indebtedness existing at that time was $1,715, which he owed jointly with Corser and Whittaker.
There was a grant of real property to Maude E. Hooker for a valuable consideration paid by another, her husband, James F. Hooker, who was then a debtor. The grant is presumed fraudulent as against the creditors at the time of James F. Hooker. It is not conclusively fraudulent. A question of fact is presented, with the burden upon Hooker to disprove a fraudulent intent. Real Prop. Law, § 94; Dunlap v. Hawkins, 59 N. Y. 342; Colnon v. Buckley, 117 App. Div. 742. The question of fact and the burden of proof are the same, if this be considered the usual action to set aside a conveyance as fraudulent against creditors. Code Civ. Pro. §§ 1871, 1872; Ga Nun v. Palmer, 216 N. Y. 603, 611, 612.
The one question necessary to determine is: Has the defendant James F. Hooker met the burden of proof resting upon him? Has he disproved a fraudulent intent? A question of actual fraud, not legal fraud, is presented, and its determination depends upon the evidence presented, the particular circum
Complaint dismissed.