
    John H. Voorhees and Others, Respondents, v. Harry Unger and Others, Appellants.
    Second Department,
    December 24, 1914.
    Debtor and creditor — fraud — action to set aside conveyances — failure of proof — evidence—insolvency.
    Where in a judgment creditor’s action to set aside certain alleged fraudulent conveyances made by the judgment debtor, there is a total failure of proof upon every point essential to the plaintiff’s cause of action, and there is not only no evidence that said conveyances, which were not offered in evidence, were voluntary, and there is nothing to contradict the testimony of the judgment debtor, as a witness for the plaintiff, that by said transfers he did not divest himself of all his real property, but was still the owner of a plot of land, the value of which was not shown, and which he did not convey until some time after the malting of the conveyances sought to be set aside, a judgment in plaintiff’s favor must be reversed and a new trial granted.
    A voluntary conveyance by a debtor is presumably fraudulent as against existing creditors of the grantor.
    The return of an execution unsatisfied is not evidence that the judgment debtor was insolvent several months prior thereto.
    Appeal by the defendants, Harry Unger and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 30th day of July, 1914, upon the decision of the court after a trial at the Kings County Special Term.
    
      Louis J. Gold, for the appellants.
    
      William B. Hurd [William B. Hurd, Jr., with him on the brief], for the respondents.
   Burr, J.:

This action was originally commenced against Harry Unger, G-ussie Unger, his wife, Sarah Krane and three other defendants to set aside several conveyances made by said Harry Unger at different times to said several defendants as fraudulent and void as against plaintiffs, who subsequently became judgment creditors of said Harry Unger. Upon two previous occasions a judgment in favor of the plaintiffs has been reversed by this court for insufficient proof. (Voorhees v. Unger, 142 App. Div. 543; S. C., 151 id. 35.) The action now appears to have been abandoned against all of the defendants except Harry Unger and his wife, and Sarah Krane, who is his sister. So far as these defendants are concerned the present judgment sets aside a conveyance of certain personal property consisting of a stock of dry goods in the store at the corner of Zeidler avenue and hi urge street in Maspeth, L. I., made by Unger to his wife on March 5,1909, and also a conveyance of said real property to the defendant Sarah Krane by deed dated February 16, 1909, and recorded on March . 5, 1909, and a subsequent mortgage on said real property by the last-named defendant to G-ussie Unger. At the time mentioned Harry Unger was extensively engaged in building operations and continued therein until July of the same year. Plaintiffs were dealers in building materials. On February 16, 1909, Harry Unger was indebted to them in the sum of $800 for materials theretofore sold and delivered to him. Between February sixteenth and March fifth plaintiffs sold and delivered to him additional material of the value of $600, and, subsequent to the later date, continued to sell and deliver to him such material. On July 14, 1909, they recovered a judgment for goods sold and delivered for the sum of $2,095.89. Upon this judgment an execution was subsequently issued and returned unsatisfied. There is no finding in this case of a conspiracy between defendants to cheat and defraud plaintiffs, so that evidence of overt acts, in furtherance thereof, upon the part of one defendant, would be competent against his coconspirators, nor is there evidence to sustain such finding. The fact that Grussie Unger is the wife and Sarah Krane the sister of Harry Unger is not of itself sufficient to establish that the respective conveyances were fraudulent. (Wadleigh v. Wadleigh, 111 App. Div. 367; Kerker v. Levy, 140 id. 428; affd., 206 N. Y. 109.) There is no evidence in this case that the conveyances, or either of them, were voluntary, that is, without sufficient consideration. The conveyances themselves were not offered in evidence; so that, so far as the present record is concerned, we are not advised as to their apparent character. The only witness called by the plaintiffs on this subject was Harry Unger. His testimony, if true, would establish a sufficient consideration for each conveyance. The learned trial j ustice states that he did not believe this testimony. Perhaps he was not obliged to do so. But, if we strike the whole of it from this record, then plaintiffs are left without any testimony on the subject. Disbelief of this testimony is not sufficient to sustain a finding of fact to the contrary thereof, in the absence of other evidence of its existence, or from which it may be inferred. (Voorhees v. Unger, 151 App. Div. 35, 38, and cases there cited.) Neither is there evidence that, by these two conveyances, the defendant Harry Unger then became insolvent. The return of an execution unsatisfied in July, 1909, would not be evidence of insolvency of the judgment debtor in the preceding February. (Voorhees v. Unger, 142 App. Div. 543.) There was evidence that at that time he was indebted. But indebtedness is one thing, and insolvency is another.' (Upson v. Mount Morris Bank, 103 App. Div. 367.) The apparent conflict in the decisions upon the question whether a voluntary conveyance, by one indebted, is presumably fraudulent as against existing creditors, must now be deemed to be settled in favor of such contention. (Kerker v. Levy, 206 N. Y. 109.) But not only is there no evidence that these conveyances were voluntary, but there is evidence from the witness Unger that, by these transfers, he did not divest himself of all of his real property, but that he still owned a plot on Onderdonk avenue, consisting of thirty-one lots, the value of which is not shown and which was not conveyed by him until some time subsequent thereto. There is nothing to contradict this testimony. If we should disregard it, then there is no evidence upon this subject. If we concede that there were suspicious circumstances in connection with these transfers, suspicion is not the equivalent of proof. (Barr v. Sofranski, 130 App. Div. 783.) There is a total failure of proof in this case upon every point essential to plaintiffs’ cause of action, and the judgment appealed from must be reversed and a new trial granted, costs to abide the final award of costs. The eighth finding of fact should be modified as to the date, and the ninth and eleventh findings of fact should be reversed as contrary to the evidence, or without evidence to sustain them.

Jenks, P. J., Thomas and Rich, JJ., concurred; Carr, J., not voting.

Judgment reversed and new trial granted, costs to abide the final award of costs. The eighth finding of fact is modified as to the date, and the ninth and eleventh findings of fact are reversed as contrary to the evidence, or without evidence to sustain them.  