Ewen v. Hoefer — 139 N.Y.S. 1054

Majority

p. 1054

EWEN v. HOEFER, et al.

(Supreme Court, Appellate Division, First Department.

February 7, 1913.)

Headnote

Appeal from Special Term, New York County.

Action by John Ewen, as trustee in bankruptcy of Herman W. Hoefer, against Elizabeth M. F. Hoefer, otherwise known as Elizabeth* M. Ochs, individually and as executrix of Maria Hackman, deceased',, and another. From an order setting aside an order for the examination of a defendant before trial, plaintiff appeals.

Reversed, and order for examination reinstated.

See, also, 139 N. Y. Supp. 1055 .

Argued before INGRAHAM, P. J„ and McLAUGHLIN,. CLARKE, SCOTT, and DOWLING, JJ.

Bennet & Cooley, of New York City (Elmer E. Cooley, of New York City, of counsel), for appellant.

Abraham M. Pariser, of New York City, for respondents.

The action is brought by the trustee in bankruptcy of Herman W. Hoefer to set aside certain conveyances, for an accounting of the rents, and for possession of the premises, conveyed,, on the ground that the said conveyances were made for the purpose of hindering, delaying, and defrauding creditors, pursuant to a secret agreement and conspiracy that the property should be held for and1 reconveyed to the bankrupt upon his request.

The complaint alleges that at the time said Hoefer made the transfer he was solvent, and that the effect of the said transfer was to make-him insolvent and unable to pay his debts, and that the parties to the

p. 1055

said secret agreement, conspiracy, and fraudulent transfer were the defendants, Hoefer, Hackman and Ochs. Sufficient facts were presented by the moving papers to justify the order for the examination before trial.

The order appealed from should be reversed, with $10' costs and disbursements to the appellant, and the order for the examination reinstated, with $10 costs.