41 N.Y.S. 40 | N.Y. App. Div. | 1896
This is a judgment creditor’s action which asks to have set. aside -as fraudulent a conveyance made by the judgment debtor, Bertha E. Whigam, to Catherine Etzel. Plaintiffs aré the owners, of certain premises which, at the time when they acquired title,, were leased to the defendant Whigam for a term of. five years at the annual rental of $2,100. This léase provided for a renewal, at a rental to be agreed upon, and in the event' of failure by the parties to agree, the stun was to be determined by arbitrators as. provided therein. The lease expired in 1894, and tiie parties being-unable to agree, arbitration fixed the yearly. rental- at $2,300.. The defendant Whigam continued under this lease until February,,
At the timé when the conveyance was made, there was a Subsisting lease, the privilege of renewal .existed, and whether it should be renewed or! not was at the option of the lessee. , She having exercised that option by a renewal, there was at all times an existing continuing liability Upon.her part to pay the rent secured, thereby. This condition constituted the plaintiffs creditors - within the meaning of the statute at the time the transfer was made. (Young v. Heermans, 66 N. Y. 374; Anderson v. Anderson, 64 Ala. 403; Bump Fraud. Conv. §§ 501-506.)
. In either aspect of this case the plaintiffs are to be treated! as creditors having a standing .to attack this conveyance. (Savage v. Murphy, 34 N. Y. 508 ; Cole v. Tyler, 65 id. 73.)
The evidence warranted the finding of the -fraudulent intent in making the: conveyance. It is needless to examine and set out: in detail each particular fact which authorized the finding of the fraudulent intent. The main. features -are found in the fact that . defendant Whigam was conducting a losing business upon the leased prémises; there appeared to be no necessity for the conveyance, as the sister was not pressing for payment, assuming the debt-
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.