Kuhlbarsch v. Sauter

Appellate Division of the Supreme Court of New York

Kuhlbarsch v. Sauter

257 A.D. 1038, 13 N.Y.S.2d 844, 1939 N.Y. App. Div. LEXIS 8988

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1939

StatusPublished

Cited by2 cases

This text of 257 A.D. 1038 (Kuhlbarsch v. Sauter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kuhlbarsch v. Sauter, 257 A.D. 1038, 13 N.Y.S.2d 844, 1939 N.Y. App. Div. LEXIS 8988 (N.Y. Ct. App. 1939).

Pincite

Opinion

Judgment affirmed, with costs. Memorandum: There is competent proof which we deem sufficient to establish that the plaintiff was forcibly evicted by her husband from their home without just cause shown for such eviction; that thereafter plaintiff’s husband refused either to permit her to return to their home or to support her; that being without either property or source of income, the plaintiff was required to and did earn and expend a sum not unreasonable in amount for her support and maintenance between the date of her eviction and the date of her husband’s death, which amount became a legal debt of her husband (Dravecka v. Richard, [1039]*1039267 N. Y. 180, 183; DeBrauwere v. DeBrauwere, 203 id. 460, 463, 464; Laumeier v. Laumeier, 237 id. 357, 364, 365); that meantime, on April 3, 1937, plaintiff’s husband conveyed to the defendant, without a fair consideration therefor, the real property with which this action is concerned, thereby rendering plaintiff’s husband insolvent and thus committing a fraud upon his creditors (Debtor and Creditor Law, § 273), of whom the plaintiff was one. When it appeared from the proof that plaintiff’s husband had voluntarily transferred his property to the defendant at a time when he had debts outstanding, che burden of going forward with proof of his solvency was upon the transferee. (Feist v. Druckermon, 70 F. [2d] 333, 335; Ganun v. Palmer, 216 N. Y. 603, 611, 612; Sabatino v. Cannizzaro, 243 App. Div. 20, 22, 23.) Having failed to make such proof, the defendant cannot prevail against the plaintiff’s present demand. All concur. (The judgment is for plaintiff in an action to set aside a conveyance of realty in fraud of creditors.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ. [170 Misc. 955.]

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Judgment affirmed, with costs. Memorandum: There is competent proof which we deem sufficient to establish that the plaintiff was forcibly evicted by her husband from their home without just cause shown for such eviction; that thereafter plaintiff’s husband refused either to permit her to return to their home or to support her; that being without either property or source of income, the plaintiff was required to and did earn and expend a sum not unreasonable in amount for her support and maintenance between the date of her eviction and the date of her husband’s death, which amount became a legal debt of her husband (Dravecka v. Richard, [1039]*1039267 N. Y. 180, 183; DeBrauwere v. DeBrauwere, 203 id. 460, 463, 464; Laumeier v. Laumeier, 237 id. 357, 364, 365); that meantime, on April 3, 1937, plaintiff’s husband conveyed to the defendant, without a fair consideration therefor, the real property with which this action is concerned, thereby rendering plaintiff’s husband insolvent and thus committing a fraud upon his creditors (Debtor and Creditor Law, § 273), of whom the plaintiff was one. When it appeared from the proof that plaintiff’s husband had voluntarily transferred his property to the defendant at a time when he had debts outstanding, che burden of going forward with proof of his solvency was upon the transferee. (Feist v. Druckermon, 70 F. [2d] 333, 335; Ganun v. Palmer, 216 N. Y. 603, 611, 612; Sabatino v. Cannizzaro, 243 App. Div. 20, 22, 23.) Having failed to make such proof, the defendant cannot prevail against the plaintiff’s present demand. All concur. (The judgment is for plaintiff in an action to set aside a conveyance of realty in fraud of creditors.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ. [170 Misc. 955.]

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Bluebook (online)

257 A.D. 1038, 13 N.Y.S.2d 844, 1939 N.Y. App. Div. LEXIS 8988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuhlbarsch-v-sauter-nyappdiv-1939.

Opinion

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