
    _William H. Lewis, Appellant, v. Amy Boardman, Respondent, Impleaded with Others.
    
      Action to set aside a conveyance alleged to be in fraud of creditors — the burden of establishing the gramtoffs insolvency rests on the plaintiff—proof that the conveyance was volunta/ry is insufficient.
    
    In an action brought by a judgment creditor to set aside a conveyance of real property made by the judgment debtor to his wife, on the ground that the judgment debtor was insolvent at the time he executed the conveyance and that such conveyance was made with intent to hinder, delay and defraud his creditors, the burden of proving the judgment debtor’s insolvency at the time he executed the conveyance is upon the plaintiff whether he was a creditor at the time the conveyance was made or became such at a time subsequent thereto; the simple fact that the conveyance was voluntary is not sufficient to sustain the action.
    Appeal by the plaintiff, William H. Lewis, from a judgment of the Supreme Court in favor of the defendant Amy Boardman, entered in the office of the clerk of the county of Few York on the 28tli day of April, 1902, upon the decision of the court rendered after a trial at the Few York Special Term dismissing the complaint upon the merits.
    
      John H. Oorwin, for the appellant.
    
      Thomas Allison, for the respondent.
   Patterson, J.:

The plaintiff is the assignee of a judgment recovered May 29, 1899, by George P. Utley against Harmon G. Utley. On June 20, 1896, Harmon G. Utley conveyed to his wife, Sarah A. Utley, premises known as Fo. 19 West One Hundred and Twenty-first street, in the city of Few York. On March 1,1897, Sarah A. Utley conveyed the same premises to her daughter, Amy Boardman. In June, 1899, this action was begun to set aside the conveyances mentioned, on the ground that they were made, delivered and recorded without any consideration therefor, and with the intent to hinder, delay and defraud the plaintiff and creditors of Harmon Utley. It is further alleged in the complaint that the deed from Sarah A. Utley to the defendant Boardman was procured to be made by Harmon Gr. Utley by fraud, and that such deed never was delivered to the defendant Amy Boardman, who was not a purchaser of the premises described in such deed in good faith or for value. There is also an allegation in the complaint that Harmon Gr. Utley was, at the date of the conveyances, insolvent and unable to meet his liabilities or pay his debts and was largely indebted to divers persons in large sums of money and particularly to the plaintiff’s assignor for the obligations upon which the judgment was recovered and for other, sums of money. The answer puts in issue all the substantial allegations of the complaint. Pending the action, and before trial, Harmon Gr. Utley died, and his executors were brought in as parties defendant. Upon the trial the court held that the defendant was entitled to judgment dismissing the complaint, and it was decided that the deed made by Harmon Gr. Utley to Sarah A. Utley of the premises in question was not made or recorded with the intent to hinder, delay or defraud the plaintiff’s assignor, nor with intent to hinder, delay or defraud the plaintiff, nor with intent to hinder, delay or defraud the creditors or any of them of Harmon Gr. Utley, and that the said Harmon Gr. Utley was not insolvent when the deed was made, or when it was recorded, and Harmon G. Utley did not render himself insolvent by the execution and delivery of the deed or the recording thereof. The plaintiff appeals from the judgment entered.

The burden of proof that Harmon G. Utley was insolvent at the time he made the conveyance to his wife was upon the plaintiff. That proposition was plainly established in Kain v. Larkin (131 N. Y. 300), and the rule applies with equal force whether a creditor attacking a conveyance was such when the conveyance was made or became such subsequently to the conveyance being made. The simple fact that the conveyance was voluntary is not sufficient. That Smith v. Reid (134 N. Y. 568) is in conflict with the proposition laid down in Kain v. Larkin is true. In this court we have refused to follow the ruling in Smith v. Reid, but have regarded what was decided in Kain v. Larkin as conclusive upon the subject. (Kalish v. Higgins, No. 1, 70 App. Div. 192.) In the present case the plaintiff failed to prove the insolvency of Harmon G. Utley at the date of the conveyance to his wife. Indebtedness only was proven. We cannot hold on this record that Harmon Gr. Utley was actually insolvent in June, 1896.

The judgment should he affirmed, with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  