#### Max Tromer, Plaintiff, *v.*Clara Bader and Hyman Wittner, Defendants.

(Supreme Court, New York Special Term,

April, 1913.)

Evidence — contradictory — transfer of stock by bill of sale—burden of proof.

Where a transfer of a stock of goods by a bill of sale expressing a consideration of $1,000 was made during the pendency of an action against the vendor, without notice to the plaintiff in the suit, and with intent on the part of the vendor to defraud her creditors, in payment of a pre-existing debt of $2,000 to her son-in-law, who, the next day, sold the goods for $1,450 and whose testimony in proceedings supplementary to an execution against the vendor, and upon his examination both before and on the trial of an action to set aside the bill of sale, is so materially contradictory as to stamp his statement that he did not know that the vendor was being sued as unworthy of belief, plaintiff is entitled to judgment.

The burden of proof was on plaintiff to show not only that he was a purchaser for value in good faith but that he had no notice or knowledge of facts sufficient to put him on inquiry as to the intent of the vendor.

Action to have a bill of sale declared fraudulent.

Samuel S. Marcus, for plaintiff.

Aaron Honig, for defendants.

Cohalan, J.

Plaintiff brings this action to stamp as fraudulent a bill of sale executed by the defendant *336Bader to her son-in-law, the defendant Wittner. The facts show that the plaintiff sued the defendant Bader on the 16th day of November, 1911; that the bill of sale was made and delivered on the 23d day of November, 1911, and that the plaintiff secured a judgment against the defendant Bader on the 7th day of December, 1911. It is conceded that the transfer was made during the pendency of the action; that the execution was returned unsatisfied, and that no notice of the contemplated transfer, as required by section 44 of the Personal Property Law of the Consolidated Laws of 1909, was given by either of the defendants to the plaintiff. The bill of sale, therefore, is presumed to be fraudulent and void as against the plaintiff, who was a creditor at the time of the transaction. The vendee testified that he parted with nothing at the time of the execution of the bill of sale, but that he- received it in payment of a pre-existing debt of about $2,000. He asserts that he did not know that the plaintiff was suing his mother-in-law at the time, yet her attorney in that action was the attorney who drew the bill of sale and is the attorney for both of the defendants in the present action. The many material differences between the testimony of this witness in supplementary proceedings and in his examination before trial, and his testimony at the trial of this action, stamp his story as being untrue and unworthy of belief. Moreover, the day after he received the bill of sale he took possession of the stock, put it on a truck and delivered it to the firm of Laski *&*Levy, to whom it was sold for about $1,450. This action on the part of the defendant Wittner bears every mark of fraud. Furthermore, the defendant Wittner asserts that his mother-in-law owed him about $2,000, yet the consideration expressed in the bill of sale was $1,000. When pressed for an explanation of this discrepancy none was forthcoming. *337The defendant Wittner has not sustained the burden of proving that he was a *bona jide*purchaser for value, and I am of opinion that the real purpose of this transfer was to hinder the plaintiff in the collection of his claim. The intent on the part of the grantor being to defraud her creditors, the presumption is that such also was the intent of the grantee, and upon him devolved the burden of showing not only that he was a purchaser for value in good faith, but that he had no notice or knowledge of facts which put him on inquiry as to the intent of the grantor. Gilmour v. Colcord, 96 App. Div. 358. Judgment for plaintiff.

Judgment for plaintiff.