#### Marcus J. Parrott, Plaintiff, *v.*Lewis Mayer et al., Defendants.

(Supreme Court, New York Special Term,

March, 1900.)

Attachment — Insufficient proof of disposition of property with intent to defraud creditors.

Allegations, contained in the affidavit of a creditor by note, to the effect, that, after the debtor had indorsed it and before it become due, he transferred certain real estate to his daughters for a nominal consideration, not accompanied by any statement that he was then in*51solvent, or that the transfer made him so, or that he was otherwise then indebted, are insufficient to show a fraudulent intent, and do not justify an attachment upon the ground that he had disposed of his property with intent to defraud his creditors.

Motion to vacate an attachment for insufficiency of the original papers.

Freling H. Smith, for plaintiff.

L. & A. TJ. Zinke, for defendant Fox.

Leventritt, J.

This is a motion to vacate an attachment for insufficiency of the original papers. The warrant was based upon the alleged disposition of property with intent, to defraud creditors, and the particular infirmity invoked is the failure to show such intent. The only allegations bearing upon this question are these: In the years 1886 and 1893 the defendant Fox, against whose property the warrant was issued, became the owner of various pieces of real estate which he transferred in November, 1899, to his two daughters for a nominal consideration. The transfer was made about six weeks after indorsement by him of a note, which is the subject of this action, and about six weeks prior to its maturity. Beyond these bald facts the affidavit contains no statement in support of the expressed belief that the conveyance was made in fraud of creditors. There is no allegation of insolvency at the time of the conveyance, nor that the real estate transferred constituted substantially all the debtor’s property or even any considerable portion of it, nor that the conveyance itself rendered him insolvent, nor that he was otherwise indebted at the time. The affidavit is insufficient to support the attachment; it does not disclose fraudulent purpose. The Code provision (§ 636, subd. 2) does not make the disposition of all of his property by the debtor a prerequisite to the granting of an attachment on the ground under consideration, but, in that event, facts other than the mere transfer must be presented to justify the conclusion of fraud. Treadwell v. Lawlor, 15 How. Pr. 8; Weiller v. Schreiber, 63 id. 491; Hyman v. Kapp, 22 Week. Dig. 310; affirmed, 125 N. Y. 700. The affidavit does not disclose whether the plaintiff transferred all or part of his property. All that appears is that he made transfers for a nominal con*52sideration in the face of an indebtedness to the plaintiff. The Eevised Statutes (2 Birdseye’s R. S., p. 1345, § 12) specifically provide: *“*FTor shall any conveyance or charge be adjudged fraudulent as against creditors, solely on the ground that it was not f onnded on a valuable consideration.” Construing this provision, the Court of Appeals in Kain v. Larkin, 131 N. Y. 300, held that an owner of real estate could make a voluntary settlement thereof upon his wife or children, and that the person assailing the deed assumed the burden of showing that it was executed in bad faith, and that it left the grantor insolvent and without ample property to pay his existing debts and liabilities, at p. 307. Only where the grantor is insolvent at the time is the want of consideration a controlling fact on the question of fraud. Erickson v. Quinn, 47 N. Y. 410, 413. For aught that appears to the contrary the attached debtor is amply able to respond to the plaintiff’s claim — the only liability so far as disclosed by the papers. FTo facts inconsistent with solvency at the time of the transfer are shown and there is, therefore, neither presumption nor.proof of fraudulent intent. Grosvenor v. Sickle, 13 N. Y. St. Repr. 566; McCole v. Loehr, 79 Ind. 432; Guy v. Craighead, 21 App. Div. 460; 40 id. 261; Smith v. Reid, 134 N. Y. 568. The attachment should be vacated, with ten dollars costs to the defendant Fox.

Attachment vacated, with ten dollars costs to defendant Fox.