Scholtz v. Yastrzemski , 247 A.D. 823 ( 1936 )

Judgment dismissing the amended complaint on the merits in an action by a judgment creditor to set aside a mortgage as fraudulent under the Debtor and Creditor Law reversed on the law and the facts, with costs, and judgment directed for plaintiff, with costs. Findings of fact numbered 7 and 8 and the conclusions of law are reversed, and new findings and conclusions will be made. In our opinion the uncontradicted evidence establishes an actual intent on the part of defendants to defraud creditors both under the common law and under section 276 of the Debtor and Creditor Law. This is sufficient to entitle plaintiff to set aside the mortgage regardless of the adequacy of the consideration or the solvency of the debtor. (Brody v. Pecoraro, 250 N. Y. 56; Ga Nun v. Palmer, 216 id. 603, 612; Billings v. Russell, 101 id. 226, 234; Sabatino v. Cannizzaro, 243 App. Div. 20; Carstairs v. Spear, 201 id. 418, 421.) Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur. Settle order on notice.