Takacs v. Kapela

264 A.D. 871, 35 N.Y.S.2d 502, 1942 N.Y. App. Div. LEXIS 5188

Opinion

Plaintiffs, in an action (a) to set aside as in fraud of their rights as judgment creditors a purported conveyance of real property, and (b) for money damages, appeal from a judgment of the Supreme Court dismissing their complaint upon the merits, entered upon a decision of the court on trial at Special Term. Judgment reversed on the law, with costs, and judgment directed for plaintiffs as demanded in the complaint, except as to the demand for a money judgment, which was abandoned on the appeal, with costs. In our opinion, the uneontradicted evidence, including the conceded fact that the grantors continued to pay taxes on the property, and to pay interest on a mortgage thereon, and remained in possession of the property for three and one-half years after the purported conveyance was made, established an actual intent on the part of the grantors, with knowledge thereof in the grantees, to defraud creditors, both under the common law and under section 276 of the Debtor and Creditor Law. (Brody v. Pecoraro, 250 N. Y. 56; Scholtz v. Yastrzemski, 247 App. Div. 823.) The evidence adduced by defendants was not sufficient to raise an issue of fact. It is “ so highly improbable that it fails to rise to the standard of substantial evidence.” (Bank of United, States v. Manheim, 264 N. Y. 45, 51.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur. [See post, p. 893.]