Foote v. Stryker — 35 N.Y. St. Rep. 370

Majority

p. 370

Warren Foote et al., Resp’ts, v. Richard D. Stryker et al., App’lts.^[1]

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Fraudulent conveyances — Consideration for assignment of mortgage.

A father, while solvent, gave two mortgages to his daughter, who foreclosed them and purchased one piece of property on the sale for the amount of the mortgage thereon; the other being sold and conveyed by the referee to the father without consideration and without the daughter’s knowledge. He then promised to pay her the amount of the mortgage thereon, hut conveyed the premises to his wife who afterwards reconveyed them to him through the daughter, who also conveyed the piece purchased by her and the father gave her an assignment of a mortgage, which was less than the amount of the two mortgages first mentioned. In an action to set aside such assignment, Deld, that a sufficient consideration was shown to render the assignment valid as against creditors of the father.

Motion for reargument.

I. Newton Williams, for motion; Charles J. Patterson, opposed.

The decision of this court upon the former argument (excepting an immaterial statement in the opinion that Anna Stryker acquired two pieces of property by foreclosure of two mortgages given to her by her father in 1875, and . at her father’s request conveyed the lands- to him, when in fact she so acquired and conveyed one of these parcels and he first acquired the other by a deed direct from the referee on such foreclosure without consideration and without the daughter’s knowledge) is sustained by the proofs.

On April 20, 1875, Richard D. Stryker gave to Anna M. Stryker two mortgages (among others) one of $1,800 on Rochester avenue property and one of $2,000 on Gold street property. In 1876 she foreclosed the mortgages and at the sales she bought in the Gold street property and the referee conveyed the Rochester avenue property to Richard D. Stryker without receiving any consideration therefor and without her knowledge. She learned the fact some three months afterwards and her father then promised to pay her the amount of her mortgage for the property. In 1876 Richard D. Stryker conveyed this Rochester avenue and other property to his wife without consideration through a third party, and in 1877 the wife reconveyed to him through their daughter Anna M. Stryker, without consideration, and the daughter also at this time conveyed to him the Gold ctreet property, when he promised to pay her the amount of her mortgage upon that property for the property. She never received and he never paid any consideration for either of these parcels or her mortgages thereon prior to the assignment of the Hanna mortgage in dispute.

Upon an examination of Anna M. Stryker in supplementary Eroceedings against her father prior to this action she testified that er father owed her nothing at the time of this assignment of this. Hanna mortgage, except certain specified and referred to loans testified to by her, and on this trial she testified that her examina

p. 371

tion upon said proceedings was true but she says that she did not understand that any matter other than loaned moneys- was then being inquired into.

There is no other evidence that these properties were ever paid for save pro tanto by this Hanna mortgage. There is no evidence of gift by the daughter to her father save the possible assumption from the fact that she trusted him when he could not secure her save by destroying all chance of realizing the moneys from the mortgage for which she conveyed to him.

Motion denied, with ten dollars costs.

Dykman and Pratt, JJ., concur.