Rybarczyk v. Weis

Full title: HARRY RYBARCZYK, Respondent, v. LOTTIE WEIS, Appellant, and LEO PENKALSKI…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 20, 1942

264 App. Div. 830 (N.Y. App. Div. 1942)

Opinion

May 20, 1942.

Present — Crosby, P.J., Cunningham, Taylor, Harris and McCurn, JJ.

Judgment affirmed, without costs of this appeal to either party.

All concur, except Crosby, P.J., who dissents and votes for reversal on the law and facts and for granting a new trial in the following memorandum:

The referee improperly rejected the offer of evidence that the transfer which is sought to be set aside was made for the purpose of defrauding creditors. The referee's theory seems to have been that, since the creditors were not asserting the fraudulent character of the transfer, the defendant could not assert it as a defense to this action. This theory is incorrect. ( Pierce v. Pierce, 253 App. Div. 445; Simis v. Simis, 146 id. 655.) The third paragraph of the complaint supports the conclusion that plaintiff's transfer was made for a fraudulent purpose. (The judgment declares null and void the deed by plaintiff conveying realty to defendant Weis.)