Hyperlawhypertext legal database Kuhlbarsch v. Sauter 257 A.D. 1038

← Cases

Kuhlbarsch v. Sauter

257 A.D. 1038 Court N.Y. App. Div. Decision date 1939-06-28 English

Contents

Majority

p. 1038
Louise Kuhlbarsch, on Behalf of Herself and All Other Creditors of Paul Kuhlbarsch, Deceased, Respondent, v. Alma Ernestine Sauter, Appellant.

Judgment affirmed, with costs. Memorandum: There is competent proof which we deem sufficient to establish that the plaintiff was forcibly evicted by her husband from their home without just cause shown for such eviction; that thereafter plaintiff’s husband refused either to permit her to return to their home or to support her; that being without either property or source of income, the plaintiff was required to and did earn and expend a sum not unreasonable in amount for her support and maintenance between the date of her eviction and the date of her husband’s death, which amount became a legal debt of her husband (Dravecka v. Richard,

p. 1039
267 N. Y. 180 , 183; DeBrauwere v. DeBrauwere, 203 id. 460, 463, 464; Laumeier v. Laumeier, 237 id. 357, 364, 365); that meantime, on April 3, 1937, plaintiff’s husband conveyed to the defendant, without a fair consideration therefor, the real property with which this action is concerned, thereby rendering plaintiff’s husband insolvent and thus committing a fraud upon his creditors (Debtor and Creditor Law, § 273), of whom the plaintiff was one. When it appeared from the proof that plaintiff’s husband had voluntarily transferred his property to the defendant at a time when he had debts outstanding, che burden of going forward with proof of his solvency was upon the transferee. (Feist v. Druckermon, 70 F. [2d] 333, 335; Ganun v. Palmer, 216 N. Y. 603 , 611, 612; Sabatino v. Cannizzaro, 243 App. Div. 20 , 22, 23.) Having failed to make such proof, the defendant cannot prevail against the plaintiff’s present demand. All concur. (The judgment is for plaintiff in an action to set aside a conveyance of realty in fraud of creditors.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ. [ 170 Misc. 955 .]

Cases cited