Opinion
November 12, 1940.
Present — Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ.
In an action for conversion, judgment for plaintiff unanimously affirmed, with costs. The issue here was limited to the question of conversion of the personalty by the defendants on April 5, 1939. Defendants may not obtain possession by artifice and then invoke article 10 of the Debtor and Creditor Law as justification for the act. Relief to be afforded, pursuant to section 279 Debt. Cred. of the Debtor and Creditor Law, must be molded in accordance with the circumstances presented in an action brought by a defrauded creditor or creditors. A judgment restoring the personalty to the possession of the defendants could be predicated only on a demand and refusal as a prerequisite to the maintenance of an action. ( Cohen v. Keizer, Inc., 246 App. Div. 277; Employers' Fire Ins. Co. v. Cotten, 245 N.Y. 102.) In addition, if it be assumed that article 10 of the Debtor and Creditor Law may be invoked by way of counterclaim, the defendants failed to show insolvency at the time of the transfer, an essential element, the existence of which cannot be implied as there was forbearance on the part of the innocent transferee.