#### Edward S. Hosmer, as Trastee in Bankruptcy of Burnett Y. Tiffany, Respondent, *v.*Burnett Y. Tiffany and Lucille A. Tiffany, Appellants.

First Department,

February 21, 1908.

Debtor and creditor —- fraudulent transfer of personal property — assignee not chargeable with rental value.

A decree setting aside transfers of personal property of a kind which is not ordinarily let or hired, made by a husband to his wife in fraud of creditors, should not charge the assignee with the value of the use and enjoyment of the property from the time, of the commencement of the action. ,

As to the property which the assignee can redeliver she is chargeable only for depreciation caused by use or otherwise, while she is chargeable with the value of property which she may have disposed of or cannot redeliver.

Appeal by the defendants, Burnett Y. Tiffany and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1907, upon the decision of the court, rendered after a trial at the New York Special Term.

*Abraham*Tulin, for the appellants.

*L. M. Berkeley,*for the respondent.

*288Houghton, J. :

The action is to set aside as fraudulent certain transfers of personal property made by the defendant Burnett Y. Tiffany to his wife, the defendant Lucille. '

The finding of the court that the various transfers were fraudulent and void as to the creditors of Burnett, and that his wife participated in the fraud, was a proper one, and could not well have been otherwise. The court very properly could have gone further and found as matter of fact that no ante-nuptial agreement was ever made. The loose talk that Burnett would furnish a home and give the furniture to his intended wife if she would marry him at once, hardly rose to the dignity of an ante-nuptial agreement. As found by the court, however, such agreement formed no consideration for the transfer as against the creditors of Burnett..'

The form of the judgment, in our opinion, is improper in so far as it charges the -defendant Lucille A- Tiffany with the value of the use and enjoyment of the property from the time of the commencement of the action. It was personal property that was transferred. Had it been real estate the rental value would have been proper. It being personalty and still in her possession and capable of redelivery, she is accountable only for its depreciation in' value through her use of it. She may be able to deliver to the plaintiff some portion of it undamaged and unimpaired- by her use. This is all the plaintiff can demand. Much of the property is not of the character which is usually let for hire or rented, and has no ordinary rental value. If by use or otherwise she has impaired its value she is accountable for the depreciation. Where a fraudulent transferee has mortgaged the property transferred to him to an innocent mortgagee, thus creating á valid lien, he is accountable for such impairment of Value. *(Salt Springs Nat. Bank*v. Fancher, 92 Hun, 327.) There seems to be no reason why the same rule should not be applied to impairment of value of personal property, in any manner. As to that part of the property, if any, which she has disposed of or used up and cannot redeliver, the judgment properly charges her with its value.

The judgment should be modified by striking out that part of it requiring Lucille A. Tiffany -to pay to the plaintiff the value of the Use and enjoyment of the property from the time of the commence*289ment of the action, and inserting in place thereof a provision that she pay such sum. of money as shall represent the depreciation of the value of the property from its use by her, or otherwise, and as so modified the judgment should be affirmed, without costs.

Patterson, P., J., Ingraham, Laughlin and Clarke, JJ., concurred.

Judgment modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.