
    Julia Morris, Resp’t, v. John Morris et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Fraudulent conveyance—Evidence.
    In an action to set aside a conveyance as fraudulent it appeared that the plaintiff's judgment was recovered for breach of a contract to support her in consideration of a transfer of personal property. Held, that it was error to refuse to admit evidence tending to show that plaintiff took away some or all of the personal property so assigned; that it was worth more than the amount of her judgment, and that the sheriff was told to levy on the property in the possession of plaintiff.
    Appeal from judgment in favor of plaintiff and from order appointing a' receiver.
    
      Action to set aside a conveyance made by defendant as fraudulent and void as to the plaintiff.
    
      Garrett Z. Snider, for app’lts ; Arthur S. Tompkins, for resp’t.
   Barnard, P. J.

The plaintiff made an agreement with her son, the defendant John Morris, that in consideration of a transfer of personal property to the son by the mother, that he, the son, would support the mother and her husband on his farm. The son broke the contract and the plaintiff obtained a judgment against him for damages and .costs, $252.06, on the 6th of October, 1890. An execution was returned unsatisfied and the plaintiff by this action seeks to set aside a transfer of his farm made the 20th of September, 1890, but not recorded until after the trial of the action for breach of contract. The defendant John Morris transferred to his mother-in-law, the defendant, Mrs. Orowe. An express agreement was shown that the transfer was made to prevent the plaintiff from collecting her judgment. The consideration was not real and the transaction was not done in good faith. The only question, therefore, is whether the trial was had without error. The defendants offered to show that the plaintiff took away from the farm in question, when she left, some or all of the property she had assigned to her son as the consideration of her agreement with him. That this property was worth $800, as claimed by John Morris. That the sheriff was told to levy on this property in the possession of his mother. The evidence should have been received. Cuyler v. Moreland, 6 Paige, 273; Storm v. Badger, 8 id., 130; Forbes v. Waller, 25 N. Y., 430.

The case must now be decided upon the assumption that at the time of the issuing and return of the execution against John Morris, the plaintiff had abundant personal property of his in her possession out of which to pay the same with all costs.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.  