
    Bertram Smith, Appellant, v. Marie C. A. Kissam, Respondent, et al., Defendants.
   Appeal from an order of the Supreme Court at Special Term, entered October 9, 1945, in Bronx County, which granted a motion by respondent for a dismissal of the complaint as to said defendant on the ground that it does not state facts sufficient to constitute a cause of action.

Per 'Curiam,.

Giving every fair intendment to the allegations of the complaint we deem the pleading sufficient to establish at least prima facie that plaintiff was a creditor who was entitled to bring an action to set aside fraudulent transfers of his debtor’s property (see Brooklyn Savings Bank v. Neumann, 251 App. Div. 264).

If defendant-respondent desires to urge-that the present action would deprive her of any rights afforded her by section 1083 or section 1083-a of the Civil Practice Act, she may assert same by way of affirmative defense (Brooklyn Savings Bank v. Neumann, supra).

The order dismissing the complaint should be reversed, with $20 costs and disbursements to the appellant, and the motion denied, with leave to the defendant-respondent to answer within ten days after service of a copy of the order with notice of entry thereof, on payment of said costs.

Cohn, Callahan, Peck and Van Voorhis, JJ., concur; Martin, P. J., dissents and votes to affirm.

Order reversed, with $20 costs and disbursements to the appellant, with leave to the defendant-respondent to answer within ten days after service of the order, with notice of entry thereof, on payment" of said costs. [See 272 App. Div. 756.]  