Lafayette Lumber Co. v. Selvester

226 A.D. 766

Opinion

Order affirmed, without costs. While it is not necessary that a creditor obtain a judgment against his debtor and have an execution returned unsatisfied before he can proceed to have a fraudulent conveyance by the debtor set aside under the provisions of sections 270-281 of the Debtor and Creditor Law, which were added by chapter 254 of the Laws of 1925 (American Surety Co. v. Conner, 225 App. Div. 137), there is no allegation in the complaint that by the conveyances defendant Selvester has so stripped himself of his property as to be unable to pay his obligations to the plaintiffs. To the contrary, the allegation is (paragraph 10 of complaint) “ that the above described real property constitutes all of such property owned by the said defendant, Joseph Selvester, on the said 14th day of August, 1928, and that he has owned other property, real or personal, sufficient to satisfy the above-mentioned indebtedness to the plaintiffs herein.” The complaint does not state a cause of action. (Kauffman v. Simis, 156 App. Div. 208; Marpret Construction Corporation v. Hargust Land Corporation, 214 id. 792; Mount Vernon Company, Silversmiths, Inc., v. Mount Vernon Metal Products Company, Inc., 202 id. 753.) Rich, Kapper, Hagarty and Scudder, JJ., concur; Lazansky, P. J., dissents upon the ground that the action affects real property and the court has no power to cancel the lis pendens merely because the complaint is insufficient.