Opinion
July 5, 1961
Action No. 1 by the plaintiff Fellenbaum, who is the vendee of two parcels of real property under a contract with defendant Miller, is to impress upon such parcels a vendee's lien for the down payment and the title examination expenses, and to foreclose such lien. Action No. 2 by the plaintiff McCarthy, the Commissioner of Welfare of the City of New York, who is a judgment creditor of the defendant Milton M. Karpel, is to set aside as fraudulent the prior conveyances of one of said parcels (Parcel No. 1); for a determination of Fellenbaum's rights in such parcel; and for its sale to satisfy the Commissioner's judgment. Both actions were consolidated. Defendants Karpel and Miller appeal from an order and judgment (one paper) of the Supreme Court, Putnam County, dated June 22, 1960, made in said actions, which, inter alia: (a) granted the motions of both plaintiffs for summary judgment striking out the answer of the defendant Miller in the first action and the answers of the defendants Miller, Karpel and Weiss in the second action; (b) set aside certain conveyances as to Parcel No. 1; (c) decreed that the plaintiff Fellenbaum have a lien on both parcels; (d) directed the sale of Parcel No. 2 to satisfy Fellenbaum's lien; and (e) directed the sale of Parcel No. 1 to satisfy the plaintiff Commissioner's judgment against defendant Milton M. Karpel. Order and judgment modified as follows:
(1) by striking out the 12th decretal paragraph and the 16th to the 25th decretal paragraphs inclusive; and by substituting therefor a decretal paragraph denying the motion of the plaintiff, Commissioner of Welfare, for summary judgment, and directing the severance of his action — Action No. 2; (2) by striking out the 13th decretal paragraph, and by substituting therefor a decretal paragraph striking out the answer of the defendant Weiss (who failed to appeal); and (3) by striking out the 8th and 10th decretal paragraphs and by substituting therefor a new decretal paragraph containing provisions: "(a) That if the proceeds of sale of Parcel II shall be insufficient to satisfy plaintiff's (Fellenbaum's) lien in full together with the allowance and costs and interest as hereinabove provided, then and in that event there shall be sold, as a separate parcel, at public auction by the Referee named in the order, all right, title and interest which on March 24, 1959, the defendant Augusta Miller had in Parcel I, subject however, to such right or rights as may be determined in favor of the plaintiff, Commissioner of Welfare, in Action No. 2; (b) That the Referee give public notice of the time and place of said sale, according to law; that out of the proceeds of said sale, after deducting his fees and expenses thereof, the Referee pay to the plaintiff, Fellenbaum, the deficiency which may be found due after the sale of Parcel II; that said Referee take receipts for all payments and file the same with his report, and that the Referee deposit the surplus, if any, arising on said sale, in the Putnam County National Bank to the credit of Action No. 1 within five (5) days after he receives the same, to be drawn only on order of the court; (c) That any of the parties to these actions may purchase at said Referee's sale; that said Referee deliver to the purchaser a deed of the premises sold on the purchaser complying with the terms on which the same was sold, and that the purchaser be let into possession on production of said Referee's deed; (d) That the defendants in the first above entitled action and all persons claiming under them after the filing of the Notice of Pendency of the action be and they hereby are forever barred and foreclosed of all rights, claims, liens, title, interest and equity of redemption in the said premises, Parcel I, and each and every part thereof; and (e) That if the proceeds of the sales of Parcel II and Parcel I are insufficient to pay the amounts directed to be paid by the said Referee, that the said Referee specify the amount of such deficiency in his report of sale and that the defendant, Augusta Miller, pay the same to the said plaintiff, Bernard Fellenbaum, and that said plaintiff have judgment against Augusta Miller for such deficiency and have execution therefor, and it is further". As so modified, the order and judgment is affirmed, with costs in Action No. 1 in favor of the plaintiff Fellenbaum against the defendant Miller, and without costs in Action No. 2. In our opinion, there are triable issues of fact in Action No. 2 which require the denial of the motion for summary judgment made by the plaintiff in that action. Since there is to be a trial of the issues in Action No. 2, as severed, we deem it appropriate to point out that if the plaintiff in said action should succeed in setting aside the deeds alleged to be fraudulent against him as a creditor, then the lien of the money judgment heretofore obtained by him against the judgment creditor, Milton M. Karpel, would attach to and be enforcible against the interest only of the said Milton M. Karpel in Parcel I, formerly owned by said Milton M. Karpel and his wife as tenants by the entirety. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.