Opinion
April 18, 1938.
Plaintiff, a judgment creditor of defendant McGovern, commenced the instant action to set aside as fraudulent certain conveyances of real estate and the transfer of McGovern's florist business, which conveyances and transfer were made shortly before the note indorsed by McGovern became due. After defendants interposed their answers, in which they denied the allegation that no part of the judgment had been paid, defendant McGovern instituted an action in equity to cancel the judgment on the ground that it had been paid. The Special Term made an order restraining the trial of the instant action until the determination of the McGovern action, and plaintiff appeals. The relief sought in the equity action may be obtained by a proper defense and counterclaim interposed in the instant action. Therefore, it was error to make the order appealed from. ( Boston Maine Railroad v. D. H. Co., 268 N.Y. 382, 391; Colson v. Pelgram, 259 id. 370, 375.) Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Lazansky, P.J., Hagarty, Davis, Johnston and Taylor, JJ., concur.