Gould v. Ellis , 247 A.D. 847 ( 1936 )

Plaintiff brought this action against the sheriff for the conversion of an automobile truck and a quantity of beans. The sheriff levied upon those articles under an execution issued on a judgment' against plaintiff's husband, who had transferred the property to the plaintiff after the action against him had been commenced. Consideration of $1,300 was mentioned in the bill of sale from the husband to the plaintiff. No evidence was offered as to the value of the property which the husband transferred to his wife. The transfer left the husband without property. The burden of proof was upon the plaintiff to show fair consideration for the transfer to her. (Debtor and Creditor Law, § 272; Littmann v. Harris, 148 App. Div. 31; Cohen v. Benjamin, 246 id. 866.) Judgment reversed on the law and facts and new trial granted, with costs' to the appellant to abide the event. Hill, P. J., MeNamee and Bliss, JJ., concur; Crapser and Heffernan, JJ., dissent and vote to affirm the judgment on the ground that while the evidence as to the value of the property transferred is not as ample as it might be, nevertheless the property involved, consisting of farming utensils and farm products, is very definitely described in the bill of sale, the cause was tried before a jury made up largely of farmers who are familiar with the value of such property, and also on the ground that the question of consideration was fairly submitted to the jury in a charge to which no exception was taken.