
    Arthur S. Hamlin, as Trustee in Bankruptcy of the Estate of Nicola Arbolino, Plaintiff, v. Nicolo Arbolino, Consiglia Arbolino, Giovanni Tessitore and Amalia Tessitore, Defendants.
    (Supreme Court, New York Special Term, Part 7.)
    Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Clothing another with title or right.
    Fraudulent conveyance: What constitutes — Conveyance by husband to wife — Gift and voluntary conveyance by husband to wife: Who may attack and conditions precedent — Who are creditors.
    Where real property is purchased with funds contributed by both husband and wife but the wife permits her husband to take title in his own name and to use it as the foundation for his qualification as surety upon an excise bond and thereafter conveys it to her for a nominal consideration, leaving himself insolvent, his trustee in bankruptcy may recover the property on the ground that such conveyance is void as against creditors.
    In such a case, contingent liabilities of the bankrupt are entitled to protection.
    Action by trustee in bankruptcy to set aside conveyance as a fraud upon creditors.
    Edward B. Boise, for plaintiff.
    Rosenberg & Hahn and Abraham H. Sarasohn, for defendant Arbolino.
    Leo Schafran, for defendants Tessitore.
   Guy, J.

This is a judgment creditor’s suit by the plaintiff as trustee in bankruptcy of Eicola Arbolino to set aside a deed executed by the said Eicola Arbolino to his wife, Oonsiglia Arbolino, on July 22, 1908, upon the ground that the same is fraudulent as to creditors. The defendant Arbolino and his wife purchased the property upon which the husband subsequently justified as bondsman, title thereto being taken in the husband’s name, with the joint earnings and savings of both husband and wife. It is impossible to give the amount of the relative shares of contribution, but the wife’s share was substantial. At the time the husband went on the excise bond he swore that he owned the property, and the bond was approved and accepted on the strength of his affidavit. Shortly before the violation of the bond occurred, and prior to the judgment obtained against him on said bond, and the issue and return unsatisfied of an execution issued on said judgment, the husband transferred the property to the wife for a nominal consideration. Notwithstanding his affidavit that he owned the property at the time he justified as surety, he, the husband defendant, testified at the trial that his ownership was only nominal; that his wife contributed the entire purchase money. The wife knew the title was to be taken and was actually taken in the husband’s name and consented thereto. She put him in the position to justify on the bond as he did, and, unless he had at the time of the transfer to her enough other property to satisfy the bond, she is estopped from claiming his ownership was a mere sham. Trenton Banking Co. v. Duncan, 86 N. Y. 228; Bank of Batavia v. New York, L. E. & W. R. R. Co., 106 id. 195; McNeil v. Tenth Nat. Bank, 46 id. 325. Contingent liabilities are debts (Young v. Heermans, 66 N. Y. 375, 384), and as such are entitled to protection of the law. The wife admits she knew her husband was insolvent Where A puts B in a position to defraud C, A should suffer the consequences, and not C. Hirsch v. Norton, 115 Ind. 341; Sloan v. Huntington, 8 App. Div. 93-96. The deed should be set aside and canceled in favor of the plaintiff as trustee in bankruptcy, and this action as against the mortgagee defendants should be dismissed, with costs. Submit proposed judgment and decision on notice. Findings passed upon.

Judgment accordingly.  