66 A.D.2d 839 | N.Y. App. Div. | 1978
Lead Opinion
In an action pursuant to article 10 of the Debtor and Creditor Law, inter alia, to set aside the transfer of two parcels of real property by defendant Giuseppe Soldano, plaintiff appeals from an order of the Supreme Court, Nassau County, entered January 6, 1978, which granted defendants’ motion to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, and defendants’ motion to dismiss the complaint denied. The instant action was commenced by the plaintiff, wife of defendant Giuseppe Soldano, in April, 1976, pursuant to section 273 of the Debtor and Creditor Law, to have two conveyances of improved real property by the defendant husband set aside; one conveyance was to his parents and brother, and the other was to his parents. The parents and brother were all named in the action as codefendants. Section 273 of the Debtor and Creditor Law states: "Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.” In her complaint the plaintiff alleged the following: In December, 1974 the defendant husband learned of his wife’s pregnancy and demanded that she abort the child. When she refused, said defendant carried on a course of cruel and inhuman treatment to terminate the marriage and minimize, if not avoid, his obliga
Dissenting Opinion
Plaintiff’s cause of action must fail because she does not qualify as a "creditor” of the defendant husband as that term is used in the statute (Debtor and Creditor Law, § 273). At the time of the allegedly fraudulent conveyances, plaintiff and said defendant were married and living together. The mere relationship of husband and wife does not give rise to a debtor-creditor status (Eccles v Hutchinson, 28 Misc 2d 412). Even