Majority
p. 637Gustavus Wolfers v. John J. Duffield and Others.
Headnote
Order affirmed, with costs.—Appeal by Mary J. Vaughan, 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 15th day of July, 1893, denying the motion of the said Mary J. Vaughan, that the proceedings in the above-entitled action for the distribution of surplus moneys be stayed.
As in the surplus proceedings all questions as to the fraudulent character of the conveyances can be tested, there seems to be no reason why these proceedings should be stayed until the revival and trial of an action commenced sixteen years ago. The appellant in that action would have no right to a trial by jury, if it is an action to set aside a conveyance as fraudulent. If the appellant's action is for the recovery of damages for fraud and deceit, a recovery in the action would in no way establish any lien upon the surplus moneys in the proceeding. The order appealed from should be affirmed, with costs.