In Dygert v. Remerschnider ( 32 N.Y. 629) this court enforced, as against the creditors of the husband, an oral ante-nuptial contract under which the latter conveyed lands to his wife, but the decision was based upon the distinct ground that the payment by the wife of some of the husband's debts created an independent consideration for the transfer, and in his discussion of that fact Judge DAVIES said: "Under the authorities, I think she (the wife) had no right based solely upon the consideration of marriage which courts, either of law or equity, could have enforced." To the same effect are Lamb v. Lamb ( 18 App. Div. 250); Ennis v. Ennis (48 Hun, 11); Whyte v. Denike ( 53 App. Div. 320); Reade v. Livingston (3 Johns. Chan. 481); Borst v. Corey (16 Barb. 136) and Matter of Willoughby (11 Paige, 257). In none of these cases, except Brown v. Conger ( supra) was the question presented in precisely the same form as in the case at bar, but in all of them the validity of an oral ante-nuptial contract was a pertinent and underlying question upon which the courts have held, with unvarying uniformity, that marriage is not such a part performance of an oral ante-nuptial contract as to take it out of the operation of the Statute of Frauds. Counsel for the appellant vigorously contends that in the case at bar the Statute of Frauds is being used by the respondents as an instrument of fraud, and that this is a consummation that equity never tolerates.
There is nothing in the complaint or bill of particulars which discloses that the alleged gifts were made to the defendants for use in the making up of purses or stakes. Upon a trial it may develop that this was the fact, but plaintiff may also establish a right to recover these gifts even though the defendants did not know Shannon was insolvent when the gifts were made (24 Am. Jur. 185, § 27; Loos v. Wilkinson, 110 N.Y. 195; 27 C.J. 509, § 176; Young v. Heermans, 66 N.Y. 374, 382; Whyte v. Denike, 53 App. Div. 320, 322; Truesdell v. Bourke, 29 id. 95; affd., 161 N.Y. 634; 12 R.C.L. 533, § 61; Cole v. Tyler, 65 N.Y. 73, 78; Debtor and Creditor Law, § 273), even if they were devoted to the use for which they were given. And it may be that plaintiff may recover if it appears that the gifts were diverted to a use other than that for which they were given at a time when the donor was insolvent. Lazansky, P.J., Hagarty, Carswell, Johnston and Close, JJ., concur.