#### SALT SPRINGS NAT. BANK OF SYRACUSE v. FANCHER et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Witness—Cross-Examination to Impeach.

In an action by a judgment creditor to set aside a deed as fraudulent, where plaintiff puts in evidence the deposition of the judgment debtor in supplementary proceedings, and the debtor testifies for defendants, plaintiff may, on cross-examination, impeach him by showing that his deposition was untrue.

2. Fraudulent Conveyances—Mortgage by Grantee-—Liability for Pro-

ceeds.

Where judgment is rendered setting a deed aside as fraudulent as to a judgment creditor of the grantor, it is proper to charge the grantee with a sum received by him on a mortgage made by him to a bona fide mortgagee, though the sum had been expended by him before the action was brought, where plaintiff’s judgment against the grantor was recovered before the mortgage was made.

3. Same—Liability for Use of Premises.

Where the grantee had the use of the land, he was chargeable with its rental value, though he received no rent.

Appeal from special term, Onondaga county.

Action Tby the Salt Springs National Bank of Syracuse against John O. Fancher and others to set aside a deed and a bill of sale. From a judgment for plaintiff, and an order confirming a referee’s report, defendants appeal.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

W. J. Bellen, for appellants.

J. William Wilson, for respondent.

MERWIN, J.

The plaintiff, as a judgment creditor of the defendant John 0. Fancher, upon a liability incurred by Fancher prior to the 24th day of June, 1892, sought to set aside, as fraudulent as against creditors, a conveyance of certain real estate, dated June 24, 1892, and a bill of sale of certain personál property, dated July 12, 1892, made by the said John 0. Fancher to the defendants War dwell W. Fancher and Charles H. Fancher. These instruments covered substantially all the property the debtor then had. Wardwell and Charles are sons of the debtor, and their main defense is that their father owed them, for services, more than the value of the property. It was found by the special term, as matter of fact, that these instruments, and each of them, were made and accepted with intent to hinder, delay, and defraud the creditors of John C. Fancher, and were therefore void as to the plaintiff and its debt. In the light of the arguments presented on the part of the defendants, we have carefully examined the evidence, and have reached the conclusion that the evidence is sufficient to sustain the finding of the special term.

The defendants claim that the rule that a party cannot impeach his own witness was violated at the trial. This claim is based on the idea that the plaintiff, by introducing in evidence the deposition of John C. Fancher, taken in proceedings supplementary to execution, made him their own witness, so that they could not contradict him, *743in showing the facts different from what he stated in his deposition. The plaintiff did not call him as a witness, as in the case of Thalheimer v. Klapetzy (Sup.) 12 N. Y. Supp. 942, but simply put in evidence, as against himself, his sworn declarations. He was after-wards called by the defendants as a witness, and the plaintiff then had a right to cross-examine him, and prove by him any facts pertinent to the issue. We find no error in allowing that course to be taken, or that there was any violation of the rule referred to.

In the course of the trial it appeared that the defendants Wardwell W. and Charles H., after the conveyance to them, and on the 12th September, 1892, gave a mortgage on the real estate to one Hawley, for the sum of $1,000, then loaned to them by Hawley, and applied the'money to their own use. It was conceded that Hawley took the mortgage in good faith. This suit was commenced on October 14, 1892. It also appeared that Wardwell and Charles had the use of the real estate from the time of the deed to them. By the judgment a receiver was appointed of the personal property, and of the rents and profits of the real estate, and of the proceeds of the mortgage above referred to, and the defendants Wardwell and Charles were directed to deliver and pay the same to him; and a referee was appointed to examine into the acts of the said defendants in regard to the real and personal property while claiming to own the same, and to take an account of the rents and profits of the real estate and the proceeds of the said mortgage, and report the evidence by him taken, and his opinion thereon. The reference provided was had, and, upon the coming in of the report, it was, after due hearing, confirmed. The defendants appeal from the order of confirmation. The referee reported that the defendants should be charged with $1,000, the proceeds of the mortgage, and, for the use of the real estate from the time of the deed to the time of the judgment or hearing before the ■ referee, the sum of $300; in all, $1,300. The appellants claim that they should not be charged with the $1,000 received on the mortgage, mainly because it was not actually in their hands when the present suit was commenced. They had applied it to their own use. In this way they would get the benefit of a fraud in which it was found that they had participated. This would hardly answer. They were, we think, properly charged with the amount. Fullerton v. Viall, 42 How. Prac. 294; Loos v. Wilkinson, 110 N. Y. 214, 18 N. E. 99. They were not charged with interest. The judgments of plaintiff were recovered before the mortgage. The appellants claim they should not be charged with the rents and profits, because they did not actually receive any. They were charged with the rental value, the amount of which was not disputed. They actually had the use of the property. That was conceded. That being so, it is difficult to see, in principle, why they should not account for the use, as much as if they had rented to a tenant, and received from him rent. In Bump, Fraud. Conv. (2d Ed.) p. 593. it is said: “It certainly is not consonant with the principles of the law that the grantee should derive any advantage from his fraud. Consequently, he may be compelled to account for the profits from the time of the transfer.” Many cases are cited to the proposition. 27o good reason is presented for *744disturbing the order. No question was made at the hearing about taxes or repairs.

Our attention is called to some other exceptions, but we find in them no sufficient ground for reversal. The judgment should be affirmed.

Judgment affirmed, with costs. Order affirmed, with flO costs and disbursements. All concur.