78 A.D. 394 | N.Y. App. Div. | 1903
The plaintiff is the assignee of a judgment recovered May 29, 1899, by George P. Utley against Harmon G. Utley. On June 20, 1896, Harmon G. Utley conveyed to his wife, Sarah A. Utley, premises known as Fo. 19 West One Hundred and Twenty-first street, in the city of Few York. On March 1,1897, Sarah A. Utley conveyed the same premises to her daughter, Amy Boardman. In June, 1899, this action was begun to set aside the conveyances mentioned, on the ground that they were made, delivered and recorded without any consideration therefor, and with the intent to hinder, delay and defraud the plaintiff and creditors of Harmon Utley. It is further alleged in the complaint that the deed from
The burden of proof that Harmon G. Utley was insolvent at the time he made the conveyance to his wife was upon the plaintiff. That proposition was plainly established in Kain v. Larkin (131 N. Y. 300), and the rule applies with equal force whether a creditor attacking a conveyance was such when the conveyance was made or became such subsequently to the conveyance being made. The simple fact that the conveyance was voluntary is not sufficient. That Smith v. Reid (134 N. Y. 568) is in conflict with the proposition laid down in Kain v. Larkin is true. In this court we have refused to follow the ruling in Smith v. Reid, but have regarded what was decided in Kain v. Larkin as conclusive upon the subject. (Kalish v. Higgins, No. 1, 70 App. Div. 192.) In the present case the plaintiff failed to prove the insolvency of Harmon G. Utley at the date of the conveyance to his wife. Indebtedness
The judgment should he affirmed, with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.
Judgment affirmed, with costs.