Opinion
May 18, 1942.
Order denying appellants' motion under rules 106 and 107 of the Rules of Civil Practice, to dismiss the complaint, reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs, with leave to respondents to serve an amended complaint within ten days from the entry of the order hereon if they be so advised. The complaint fails to state a creditor's action to set aside fraudulent conveyances for the reason that it contains no allegation that the transfers left the debtors insolvent or unable to meet the plaintiffs' claims; and, further, such an action is barred by the ten-year Statute of Limitations. ( Werbelovsky v. Rosen, 260 App. Div. 222.) The complaint might stand as stating a cause of action for damages against all defendants, a type of action which is governed by the six-year Statute of Limitations and which does not commence to run until the discovery of the acts ( Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290), except that it leaves to inference, rather than expressly alleging, that the acts of defendants prevented the collection of the plaintiffs' claims. Hagarty, Johnston, Adel and Close, JJ., concur; Lazansky, P.J., concurs in the result.