#### Hannah S. Longworth, Respondent, *v.*William H. Longworth, Defendant, Impleaded with Mary A. Longworth, Appellant.

Second Department,

May 29, 1913.

Husband and wife — conveyance by husband to avoid payment of alimony — remedies of wife — failure to prove insolvency — evidence.

*It*seems, that if after a judgment of separation in favor of a wife she wishes to attack the validity of transfers made by her husband she should reach the property by sequestration proceedings and by an action by a receiver if necessary.

A wife, having obtained a decree of separation, cannot maintain a suit to set aside transfers of lands alleged to have been made by her husband for the purpose of avoiding payment of alimony without proving that the husband was made insolvent by such conveyance.

In such suit a verified petition made by the husband in an application for release from imprisonment alleging his insolvency is not admissible as against his grantee.

Appeal by the defendant, Mary A. Longworth, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of Nassau on the 28th day of March, 1912, upon the decision of the court rendered after a trial at the Nassau Special Terin.

*Alfred T. Davison [Clarence E. Thornall*and *Arthur Gut-man*with him on the brief], for the appellant.

*George Wallace,*for the respondent.

Thomas, J.:

Upon the former appeal theré was presented a complaint which was, as then stated, bereft of purpose. *(Longworth*v. *378
      *Longworth,*144 App. Div. 187.) This court considered remedies adopted in other jurisdictions upon similar state of facts, and without deciding whether the action would he for any purpose, gave the plaintiff the usual opportunity to amend her complaint and also permitted a supplementary complaint. There was also suggestion that the complaint should proffer certain issues, but it was not determined that it would be sufficient in such form. The complaint was amended and a supplemental complaint served, and upon trial had there was judgment setting aside the conveyances as fraudulent against the plaintiff. Upon this appeal the plaintiff answers the charge, that her action preceded the judgment of separation and exhaustion of her remedies to enforce it, solely by referring to our former decision, as if the question had been there decided, as it was not. The suggestion then made did show an inclination'to the conclusion that the rule adopted'in other jurisdictions had such sufficient merit to justify the modification of the order. Indeed, there seemed much justice in the consideration that a husband should not be permitted to transfer his property to his sister in fraud of the rights of his wife and thereby compel the court to fix the alimony at a sum greatly disproportioned to his real property interest. After the judgment of separation was made, the husband submitted to imprisonment, and his sister suffered it, that he might escape the payment of even the insufficient alimony given. But after the decree was rendered it would have been in accord with the usual procedure in this State to reach the property by sequestration and an action, if necessary, by a receiver, and if the discontinuance of this action became necessary the justice of permitting it would appeal strongly to the court. The practice of enforcing judgments in independent actions brought before their recovery finds no approval in the decisions of this State, and it is thought in absence of convincing discussion that it should not be permitted. The present judgment must be reversed in any case for failure of the plaintiff to prove that the grantor was insolvent in September, 1909, when he conveyed his property, or that he was without property after such conveyance. On August 17, 1910, the husband verified a petition that shows that he was then without property, and that on such *379account he should be liberated from jail. This paper was not admitted against the grantee, and in itself is not sufficient evidence of insolvency at the time of the grant. In'such state of the record the question of the grantee’s fraud should not be decided.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.