Dolan v. Conlon — 114 A.D. 570

Majority

p. 570

Ellen Dolan, as Administratrix with the Will Annexed, etc., of John P. Conlon, Deceased, Respondent, v. Eva K. Conlon, Defendant, Impleaded with George B. Morris, Appellant.

First Department,

July 12, 1906.

Headnote

Receiver to collect and pay dower—receivership not extended to other action — when assignee of dower not enjoined from receiving same.

When a receiver has been appointed to collect and pay over dower and the widow assigns her dower to a third person for the alleged .purpose of defeating the collection of a judgment obtained against her in another action, there is no authority for extending the receivership to a third action brought to set aside the assignment as fraudulent.

The assignee of the dower should not ,be enjoined from receiving the same when the moving affidavits allege no fact showing that the assignment was without consideration or that the assignee is a non-resident, except upon information and belief, and there is no allegation that he is irresponsible, while on the contrary the affidavits in reply show that the assignee is a resident and financially responsible.

Appeal by the defendant, George B. Morris, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1906, granting the plaintiff’s motion for the appointment of a receiver of certain property herein to carry into effect a former judgment of this court'.

Morris A. Tyng, for the appellant.

George V. Grainger, for the respondent.

The defendant Conlon had her dower in certain real property admeasured, and a receiver was appointed to collect rents and pay to her quarterly the adjudged amounts.

She had brought an action to establish certain claims against the present plaintiff and others, and after decision had been announced against her, but before judgment for costs, amounting to $600, had been entered, she transferred her dower interest to the defendant Morris. The plaintiff claims that this was done in fraud of her rights and in anticipation of her judgment, and has brought this action to set such transfer aside, and has obtained an order restraining the defendant Morris from receiving any rents through the receiver and extending the receivership in the former action to this action.

There was no authority for extending the former receivership to the present action, nor was there any ground shown for restraining the defendant Morris from receiving rents under the dower claim which had been transferred to him. The affidavit of the plaintiff is that she believes the transfer was without consideration and for the purpose of preventing the collecting of her judgment.. Ho facts are shown upon which this belief is founded except the bare transfer. It is also alleged, upon information and belief, that Morris is a non-resident. There is no allegation, upon information and belief or otherwise, that he is irresponsible, and he files an affidavit in which he swears that he has been a resident for thirty-eight years, and still is, and that he is entirely responsible financially to meet any judgment which the plaintiff may obtain.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Bbien, F. J., McLaughlin, Laughlin and Clabke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.