Foote v. Stryker — 32 N.Y. St. Rep. 357

Majority

p. 357

Warren Foote et al., Resp’ts, v. Richard D. Stryker et al., App’lts.

(Supreme Court, General Term, Second Department

Filed May 12, 1890.)

Headnote

Fraudulent assignment — Amount of indebtedness to transferee for WHICH IT MAY BE HELD AS SECURITY.

An assignment by a father, while insolvent, to his daughter of a $2,000 mortgage was set aside as fraudulent as lo creditors, except as to the consideration proved therefor, which was held to be $542. It appeared that the daughter had obtained title to two lots on foreclosure of mortgages theretofore given her by her father, amounting to $3,800, and that she had conveyed such lots to him for an expressed consideration of $5,500, which had not been paid. Held, that a consideration to at least the amount of the mortgage in question was shown.

p. 358

Appeal from judgment of special term in favor of plaintiffs.

Action by plaintiffs as judgment creditors of defendant Eichard Stryker to set aside as fraudulent two assignments of mortgages made to his daughter. At the time of the later assignment Stryker was insolvent, and the court held that such assignment was fraudulent as to creditors, and should be set aside, except as to the amount of the indebtedness due- at that time to the daughter, and held that such indebtedness amounted to $542.

Charles J. Patterson, for app’lts; J. Newton Williams, for resp’ts.

The plaintiffs are judgment creditors of Eichard D. Stryker. The complaint asks that a transfer of several bonds and mortgages made by Eichard D. Stryker to his daughter, the other defendant, be set aside as fraudulent.

The transfers were made by two assignments, one dated in 1875 conveying six mortgages. As to this conveyance it appeared on on the trial that the assignment was made without fraud or evil ■intent and was before the contraction of the plaintiff’s debt. The court dismissed the complaint as to this part of the plaintiff’s claim. In 1879 Eichard D. Stryker conveyed to his daughter a mortgage executed by Agnes Cons to Eichard D. Stryker for $2,000 dated 6th December, 1875. The consideration expressed was one dollar for the assignment from the father to the daughter and also “ love and affection.” It was ruled upon the trial that the daughter might prove a real consideration to the extent of $542, which was allowed by the court and the assignment was set aside as to all over that sum. The whole question upon the appeal is whether the assignment of the mortgage did not prove a greater consideration. The proof shows that Anna Stryker acquired two pieces of land by foreclosure of two of the mortgages covered by this 1875 assignment. These lands cost her $3,800, being the amount of the several mortgages, one of $2,000 on one piece and one of $1,800 on the other. The daughter upon the request of the judgment debtor conveyed these lands to him and he mortgaged them for $2,800. The money in fact went to the plaintiffs, but it is of no importance where the money went to. As between father and daughter he owed her $5,500. This is the expressed consideration in the deed and while there is evidence that the real consideration was only the amount of the mortgages which had been foreclosed, $3,800, even that sum is largely in excess of the moneys realized on the mortgages in question. If the two pieces of property were worth less than the $3,800 the debtor should not escape this agreement to pay his daughter below what he borrowed on the property, and that is in excess of the amount of the moneys collected on the mortgage in dispute.

There should be a new trial, with costs to abide event.

Dykman and Pratt, JJ., concur.