In re National City Bank

Appellate Division of the Supreme Court of New York

In re National City Bank

269 A.D. 1040, 58 N.Y.S.2d 620, 1945 N.Y. App. Div. LEXIS 5177

Appellate Division of the Supreme Court of the State of New York·Decided December 3, 1945·Published·Cited by 7 cases

Opinion

In a proceeding in the Surrogate’s Court, Suffolk County, the petition of a creditor of the decedent to compel the administratrix to account for funds received and paid out by the decedent was dismissed after trial. Decree reversed on the law and the facts, and the matter remitted to the Surrogate’s Court for a new hearing, with costs to abide the event. The finding implicit in the Surrogate’s decision that-the decedent was solvent in January, 1932, is contrary to the evidence in the record. That finding and other inconsistent findings and conclusions are reversed. The promise of future support was not fair consideration within the' meaning of section 272 of the Debtor and Creditor Law and was insufficient to validate the transfer at a time when the transferor was in debt. Under such circumstances insolvency is presumed, and the burden of overcoming the presumption is upon the respondent, who may be able, on the now hearing ordered, to adduce proof in that respect. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.

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In a proceeding in the Surrogate’s Court, Suffolk County, the petition of a creditor of the decedent to compel the administratrix to account for funds received and paid out by the decedent was dismissed after trial. Decree reversed on the law and the facts, and the matter remitted to the Surrogate’s Court for a new hearing, with costs to abide the event. The finding implicit in the Surrogate’s decision that-the decedent was solvent in January, 1932, is contrary to the evidence in the record. That finding and other inconsistent findings and conclusions are reversed. The promise of future support was not fair consideration within the' meaning of section 272 of the Debtor and Creditor Law and was insufficient to validate the transfer at a time when the transferor was in debt. Under such circumstances insolvency is presumed, and the burden of overcoming the presumption is upon the respondent, who may be able, on the now hearing ordered, to adduce proof in that respect. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.

In re National City Bank, 269 A.D. 1040, 58 N.Y.S.2d 620, 1945 N.Y. App. Div. LEXIS 5177 (N.Y. Ct. App. 1945).

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Opinion

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