94 N.Y.S. 137 | N.Y. App. Div. | 1905
This is a creditor’s action in which it appears that the judgment debtor, William Wall Weaver, was the owner of an equitable interest in certain real estate acquired by the defendant Truslow as trustee on the foreclosure of certain mortgages belonging to the trust estate, the said Weaver being entitled to a beneficial one-sixteenth interest therein, and the said Truslow also being a beneficiary entitled to a like share. Ón the 1st day of September, 1893, said
The judgment which is the. basis of this action was- obtained April- . 24, 1896, for the sum of $522.14, only $150 of Which had- be'en contracted at the time of the assignment sought to be set aside,,but this, is immaterial, as if á. conveyance is fraudulent as to existing' creditors' it may also be attacked by subsequent creditors. (King v. Wilcox, 11 Paige, 589; O'Brien v. Whigam, 9 App: Div. 113; Dewey v. Moyer, 72 N. Y. 70, 76.) If the assignment is made with- fraudulent intent, the statute makes it void as against every person “ hindered, delayed or defrauded.” (See 2 R. S. 137, § 1;. revised by Real Prop. Law [Laws of 1896, chap. 547],. § 227.) The learned trial cóitrt properly found, therefore, that' the- defendant Truslow held the proceeds resulting from, such interest as trustee ex maleficio for the- creditors of Weaver.
This action was, commenced on the 19th- day of March, 1900. On the 9th day of February, 1900, the judgment debtor filed a petition in bankruptcy, and on the 16th day of May, 1900, he Was discharged by a certificate of the United States District Court, from all debts, and claims provable against his estate. A Us pendens Was filed in this action- On. the 22d day of June, 1900. It is claimed by the appellants that the judgment debtor’s discharge in bankruptcy is a bar to the maintenance of this action.. This defense-Was not
-Bo accounting being .necessary, "a money - judgment was proper. (Baily v. Hornthal, 154 N. Y. 648.)
There are no other questions presented by the record requiring further consideration,, and the judgment should be affirmed, with, costs.
Present — Hirschberg, P. J:, Bartlett, Jenks, Rich and Miller,. JJ.,
Judgment, unanimously affirmed, with costs.,