Sandler v. Parlapiano , 236 A.D. 70 ( 1932 )

McAvoy, J.

A judgment creditor’s action was brought to set aside a conveyance of certain Bronx county real property by the defendant Luigi Parlapiano to his wife and his four children, two of whom are infants, wherein the consideration was recited as $100 and other consideration. The dates in their order, which seem to reveal an intent to make a conveyance for the purpose of defrauding creditors, follow:

October 3, 1922, property with an equity of $9,000 was purchased by Luigi Parlapiano.

November 1, 1928, the debt was incurred by Luigi Parlapiano by a bond made to plaintiff’s assignor.

On the 15th of February, 1930, the deed conveying the property was made.

On April 26, 1930, Luigi Parlapiano received notice that $6,200 was declared due.

On May 7,1930, the deed to the wife and children was recorded.

On January 17, 1931, judgment was secured against Luigi Parlapiano for $6,513.70. No property was found on execution issued.

Plaintiff claims that a prima facie case was made out on the following facts: Transfer was made to the wife and children of the debtor at a time when he knew that he owed more than $6,000. Though the deed recited $100 as monetary consideration, it appeared in an examination in supplementary proceedings that he had received nothing when he transferred the property. It was asserted that the sole consideration for the transfer of the property was that the wife and children would support him for the rest of his life. He has no other property, so that the transfer rendered him insolvent. A transfer made to near relatives without real consideration may be considered as likely to be in fraud of creditors. The Debtor and Creditor Law provides in section 273 (added by Laws of 1925, chap. 254) that every conveyance made and every obligation incurred by a party who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation incurred without a fair consideration.

The property had not become valueless in 1930. The $100 was concededly not paid. The children were under a duty to support their father in case of his complete disability in any event. We think that at least a prima facie case was made out and the Special Term should not have dismissed the complaint at the close of the plaintiff’s case.

The judgment appealed from should be reversed and a new trial ' ordered, with costs to the appellant to abide the event.

O’Malley and Townley, JJ., concur; Merrell and Martin, JJ., dissent and vote for affirmance.