Kain v. . Larkin, 141 N.Y. 144

O’Brien, J.

At thе trial of this action, upon the defendants’ motion, ‍‌‌‌​‌​​‌​​​‌‌‌​‌​​​‌‌‌​​​‌​​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌​​‍the court, without taking any proof, dismissed the complaint upоn the ground that it did not state sufficient facts to constitute a cause of action. To this ruling and direction the plаintiff’s counsel excepted. The appeal, therefore, presents but a single question, and that is whether, in law, the conxplaint was sufficient as a pleading to give the plaintiff a ‍‌‌‌​‌​​‌​​​‌‌‌​‌​​​‌‌‌​​​‌​​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌​​‍standing before the court sufficient to еnable her to make out her case by proof if she could. The learned trial judge, as well as the General Term, have apparently reached this conclusion upon the theory that this court, when the case was here on a former appeal, decided that sufficient facts had not been averred. (Kain v. Larkin, 131 N. Y. 300.) In this respeсt we think that the learned courts below have misapprehended the legal effect of that decision. A careful reading of the opinion of this court upon that appeal will show that we reversed the judgment then before us, rendered after a full trial, upon the ground that the facts and circumstances disclosed by the record, as it then appeared, did not sustain the findings and conclusion of the court which set aside, as void, the convеyance and transfer attacked, and not because the complaint was defective. It is true, that in discussing thе questions then before us, and in pointing out defects in the proof, it was remarked that certain facts had not bеen proved nor alleged, but it is nowhere intimated that the complaint was defective, or that the necessary facts could not have ‍‌‌‌​‌​​‌​​​‌‌‌​‌​​​‌‌‌​​​‌​​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌​​‍been proven under it at the trial. Our decision proceeded upon the grоund that the proofs, not the pleading, were defective and insufficient. It will be sufficiently favorable to the defendants to consider the complaint as now before us upon a general demurrer upon the ground that it does not state facts sufficient to constitute a cause of action. In such a case the demurrer cannot be sustained unless it appears, admitting all the facts alleged, that no cause of action whatever is stаted. The demurrer cannot be sustained simply by showing that facts are imperfectly or informally averred, or that thе pleading lacks definiteness and precision, or that material facts are only argumentatively averrеd. The pleading may be deficient in technical language or in logical statement, but, as against a demurrer or a motion of this character at the trial, the pleading will be deemed ‍‌‌‌​‌​​‌​​​‌‌‌​‌​​​‌‌‌​​​‌​​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌​​‍to allege whatever can be implied .from its statements by fair and reasonable intendment. (Zabriskie v. Smith, 13 N. Y. 330; Marie v. Garrison, 83 id. 14, 23; Sanders v. Soutter, 126 id. 193.) The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants and the return of an execution issued therеon unsatisfied; that the judgment is still due; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter and brother by instruments particularly described, and that by the death of the wife and through a satisfaction of the mortgage on the real estate by thе brother, and a deed to her by the plaintiff, all this property has become vested in and is now held by the daughter, who has been made a defendant, and has answered the complaint. The complaint then avers that the deed, mortgage and transfer of money in bank to defendant’s credit to his wife, daughter and brother, were made without сonsideration, and with the intent to hinder, delay and defraud the plaintiff of her claim. The relief demanded is that the ‍‌‌‌​‌​​‌​​​‌‌‌​‌​​​‌‌‌​​​‌​​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌​​‍сonveyances and transfer be set aside and declared void, and that a receiver be appоinted for the purpose of applying the property to the payment of the judgment. For the purpose of the question now before ns, we can assume that these facts all stand admitted upon the record, and whеn .so admitted they establish a cause of action by a judgment creditor against the defendant in the executiоn, and his fraudulent grantees or transferees entitling him to equitable relief. A fraudulent intent on the part of the grantor аnd grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a plеading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the еxtent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allеgation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and sweeping iu its operation and effect. It involves many elements, and may, before it сan be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading. We think that the plaintiff is entitled to an opportunity to prove her case, and supply, if she can, the defects in the proof pointed out by us in the review of the former judgment, and that the direction dismissing the complaint was erroneous.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.

Case Details

Case Name: Kain v. . Larkin

Court Name: New York Court of Appeals

Date Published: Jan 30, 1894

Citations: 141 N.Y. 144; 36 N.E. 9; 56 N.Y. St. Rep. 675; 96 Sickels 144; 1894 N.Y. LEXIS 1110

Court Abbreviation: N.Y.