108 N.Y.S. 54 | N.Y. App. Div. | 1908
Dissenting Opinion
I dissent. The plaintiff procured judgment against one Parkin and. execution was returned unsatisfied. After the verdict was rendered in the case and before judgment was entered, Parkin transferred certain real property to the defendant. Later, in an action by this plaintiff against the defendant, judgment was .entered setting aside the transfer on the ground that it was made with the fraudulent intent and purpose of hindering* delaying, cheating and' defrauding this plaintiff in the collection of her money judgment. The complaint in that case did not demand and the judgment did not decree an accounting by the defendant for the rents and profits of the said premises while he was in possession thereof. Subsequently this action was commenced to compel .the defendant to account for snch rents and profits, and the plaintiff has had judgment decreeing that he account for the rents and profits from the time he entered into possession. The defendant appeals.
I cannot escape the conviction that the claim that the deed should be set aside so as to allow the judgment creditor to reach the land with an execution, and the claim for the moneys the fraudulent grantee received while in possession, treating him as trustee, are two distinct causes of action ; the first is to destroy the deed, the other to build up a trusteeship.
If I am right, one of the points the appellant makes should be considered. He maintains that lie may not be held to account for the rents and profits except from the time of the commencement of the action to set aside the transfer. Hillyer v. Le Roy (179 N. Y. 369) was an action to set aside a transfer as fraudulent, by a judgment creditor whose execution had been returned unsatisfied, and where transfer of certain property had been made, by some of the judgment debtors shortly prior to the judgment obtained by the plaintiffs; in that action the plaintiffs demanded that the transferee account to them for the use of the properties so fraudulently transferred, and the judgment compelled the defendants to account for rents from the time of the fraudulent transfers. In modifying the judgment, the Court of Appeals observe, per Gray, J.: “ I think the determination of the learned Appellate Division to have been correct; with this exception, however, that the judgment in the trial court appears to have included as within the lien of the original judgment
Inasmuch as neither the agreed statement of facts nor the findings of fact show what rents and profits the defendant received subsequent to the time of the commencement, of the plaintiff’s action to annul the fraudulent transfer, it is impossible from the record before us to determine the extent of the defendant’s accountability in money. My vote is to reverse the judgment and grant a new trial.
Judgment reversed, and judgment ordered for defendant, with costs.
Lead Opinion
The plaintiff having prevailed in her action as a judgment creditor to set aside a conveyance of real property by the judgment debtor to this defendant in fraud of creditors, brought this action.to make tlie defendant account for the rents and profits thereof received by him as fraudulent grantee. Judgment should have been given for the defendant. A cause of action, cannot be split up, and a separate action brought on each part. Only one action may be maintained for one cause of action in ■ its entirety, and the judgment therein is res adgudioataot all parts of siich cause of action whether included in the complaint or omitted, including all incidental relief prayed for in the complaint specifically or by being embraced in the general prayer, or which might have been prayed for in the complaint and given by the judgment (Bendernagle v. Cocks, 19 Wend. 207; Bracken v. Atlantic Trust Co., 167 N. Y. 510; Hahl v. Sugo, 169 id. 109; Remsen v. N. Y., B. & M. B. R. Co., 111 App. Div. 413; Clemens v. Clemens, 37 N. Y. 59; Bloomer v. Sturges, 58 id. 168; Jordan v. Van Epps, 85 id. 427).
The right of the plaintiff to make, the defendant account for the rents'and profits could have been enforced in her action to set aside the fraudulent conveyance. ' It wa's- .of that cause of action, and included in the relief that could be obtained therein. If it were á separate cause of action it could have been omitted, for the' rule is not that separate causes of action must be united, if possible, in the same complaint, but only that a cause of action shall not be split up.
The judgment should be reversed and judgment given for the defendant.
Woodward, Jehks and Kick, JJ., concurred; Hooker,. J.,. read for reversal and the granting of a new trial.
