Opinion
March, 1930.
Order denying plaintiff's motion for examination before trial reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; examination to proceed on five days' notice at ten o'clock in the forenoon at the place stated in the notice. In this action, brought under the Debtor and Creditor Law (§ 278), the plaintiff seeks judgment setting aside a fraudulent transfer of property upon proof of his claim as a creditor of defendant Isaac Wagner. An examination of the defendants as to the alleged fraudulent transfer does not deprive defendant Isaac Wagner of any right that he may have to have the original claim to money damages tried by a jury. The purpose of the Debtor and Creditor Law (§ 278) is to permit the plaintiff to "establish his debt, whether matured or unmatured, and challenge the conveyance in the compass of a single suit." ( American Surety Co. v. Conner, 251 N.Y. 1, 8.) Lazansky, P.J., Kapper, Hagarty and Scudder, JJ., concur; Rich, J., dissents.
Added by Laws of 1925, chap. 254. — [REP.