Aetna Casualty & Surety Co. v. A. Star Alteration Sales, Inc.

45 A.D.2d 995, 358 N.Y.S.2d 199, 1974 N.Y. App. Div. LEXIS 4231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1974
• Status: Published

Opinion

In an action on a guarantee and to adjudge a conveyance of real- property a fraud and nullity and to set it aside as in violation of the rights of creditors, defendants appeal from an order of the Supreme Court, Nassau County, dated April 20, 1973, which denied their motion for summary judgment dismissing the second cause of action, which seeks to set aside the said conveyance. Order reversed, on the law, with $20 costs and disbursements, and the motion to dismiss the second cause of action granted. The proof submitted on this motion for. summary judgment conclusively establishes that the conveyance from defendant husband to his wife was not in fraud of creditors. The moneys used for the down payment and for the payment of a second mortgage were exclusively those of the defendant wife. The deed prepared by the seller’s attorney ran only to the wife. The husband’s name was inserted by hand in the deed pursuant to the requirement of a bank that both spouses be liable on the mortgage and that both names appear on the deed. The husband deeded his interest in the property to the wife immediately after the closing and both deeds were recorded on the same day. These uncontradicted facts demonstrate that at the time of the conveyance of the property to the defendants the husband held his interest in trust for his wife (cf. Foreman v. Foreman, 251 N. Y. 237). Consequently, it cannot be held that his subsequent but almost- simultaneous conveyance of his interest to his wife was for less than fair consideration (see Debtor and Creditor Law, § 273). Gulotta, P. J., Martuscello, Shapiro, Christ and Benjamin, JJ., concur.