
    Silverius Koellhoffer, Plaintiff, v. Andrew N. Petersen et al., Defendants.
    (Supreme Court,
    Kings Special Term,
    September, 1913.)
    Judgment creditor’s action — discovery of property belonging to judgment debtor — complaint to set aside as fraudulent certain transfers of property — fraudulent conveyances — transfer of corporate stock with intent to keep it out of reach of creditors.
    In a judgment creditor’s action for the discovery of property belonging to the judgment debtor, property not specifically set forth in the complaint may be reached.
    Where, however, the complaint in a judgment creditor’s action to set aside as fraudulent certain distinct transfers of property by the judgment debtor not only contains no allegation of fact to support its prayer for a discovery of any property of the judgment debtor or property held in trust for him by the other defendants, except with respect to the particular property and transactions set forth, and alleges that defendant judgment debtor has no other property out of which a satisfaction of plaintiff’s judgment can be obtained, the court cannot declare void any transfers other than those set forth in the complaint.
    Where certain real estate was fraudulently conveyed by the judgment debtor to his wife and she did not have any of the proceeds of the sale thereof in foreclosure, and the evidence fails to show that she participated in the fraudulent intent of her husband, no personal judgment should be rendered against her in an action to set aside the conveyances to her.
    Where the judgment debtor transferred certain corporate stock to a creditor with intent participated in by the transferee that the stock should he held for the judgment debtor to keep it out of the reach of his creditors, plaintiff in a judgment creditor’s action is entitled to a personal judgment against the transferee for the value of the stock at the time of its transfer, though at the time of the trial of the action the stock was valueless.
    Judgment creditor’s.action.
    Gross & Surpless, for plaintiff.
    Joab H. Banton, for defendants.
   Benedict, J.

The complaint in this action sets forth certain transfers of real and personal property alleged to have been made by the defendant Henry Hillebrand to the defendant Emily E. Hillebrand, his wife, and to the defendant Andrew N. Petersen, which transfers are alleged to have been fraudulent as to the plaintiff, a judgment creditor of Henry Hillebrand. The demand for judgment asks that the transfers set forth be declared fraudulent and void, and that the plaintiff have a discovery of property of the defendant Henry Hillebrand or held in trust for him.

Upon the trial evidence was introduced by the plaintiff, over defendants’ objection and exception, of transfers of property other than those set forth in the complaint, and the court is asked to declare such transfers fraudulent, plaintiff claiming that the demand for discovery enables, him to reach, in this action, any property belonging to the judgment debtor or held in trust for him, whether specifically mentioned in the complaint or not.

Article 1 of title IV of chapter XV of the Code of Civil Procedure provides for the maintenance by a judgment creditor whose execution has been returned unsatisfied of an action ‘ ‘ to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust for him.” §1871. Section 1873 provides for the satisfaction of the sum due to the plaintiff ‘ ‘ out of any money, thing in action, or other personal property, belonging to, or due to the judgment debtor, or held in trust for him, which is discovered in the action.” The scope of the action seems not, however, to be limited to personal property, but may also include real property. See LeRoy v. Rogers, 3 Paige, 233; Throop’s Annotated Code, note to § 1873 "; also preliminary note preceding article 1 of title IV of chap. XV of the Code. The action provided for by the article of the Code above cited is virtually the same as the creditor’s bill for the discovery of assets under the old Chancery practice. It was authorized by the Revised Statutes (2 R. S. 173, §§ 38, 39 — original numbers), but is not believed to have had its origin in a statute, but to have been part of the inherent jurisdiction of equity. See Throop’s Code, note to § 1871.

The complaint in the case at bar seems, judging from the prayer for relief, to be framed in a double aspect, namely, first, to set aside certain transfers of property particularly mentioned, and second, to obtain a discovery of any property of the judgment debtor, or of property held in trust for him by the other defendants. There would seem to be no doubt of the right of a. judgment creditor to maintain an action for a discovery, and to reach in that action property of the debtor not specifically set forth in the complaint. LeRoy v. Rogers, 3 Paige, 234; Hart v. Albright, 28 Abb. N. C. 74; Scoville v. Shed, 36 Hun, 165. But the complaint in the case at bar contains no allegation of the existence of any property of the judgment debtor, or of any held in trust for him, except the stock and the two parcels of real property alleged to have been fraudulently transferred. In fact there is a statement, that the judgment debtor has no other property out of which a satisfaction of the judgment can be obtained. In other words, except for the prayer for discovery in the demand for relief, the complaint is appropriate to an action to set aside as fraudulent certain distinct transfers of property, and there is no allegation of fact in the complaint to support any prayer for discovery except with respect to the particular properties and transactions therein set forth. Under the old Chancery practice it was necessary that the bill should charge “ that the defendant has some property or equitable interests or things in action which ought to be applied to the payment of the complainant’s judgment.” 2 Barb. Ch. Prac. 164. This charge, however, might, it would seem, be in general terms, without specifying particular property. Id. 165; Bradt v. Kirkpatrick, 7 Paige, 62. And see LeRoy v. Rogers, 3 Paige, 234, and Hart v. Albright, 28 Abb. N. C. 74, for the allegations appropriate to such a discovery. In a case like the present, there is a substantial reason for requiring, in addition to the allegations of particular transfers, a general allegation of other transfers, or of the existence of other property, so that the defendants may be advised that other transactions than those specifically alleged are to be inquired into. I cannot, therefore, declare void any transfers other than those set forth in the complaint.

There are three transfers of property set forth in the complaint: (1) that of the real property at Floral Park in Nassau county, conveyed first to Petersen and by him conveyed to Mrs Hillebrand; (2) that of the Bast Fifth street property, conveyed directly to Mrs. Hillebrand; (3) that of the eighty-eight shares of stock in the Farragnt Realty Company, transferred to Petersen. The two properties conveyed to Mrs. Hillebrand are no longer in her legal ownership, as they have been sold in foreclosure, nor does she hold any proceeds thereof. From the evidence, I do not think that she participated in the fraudulent intent of her husband, and hence it would be improper to render a personal judgment against her for the value of these properties.

The only remaining questions to be considered are whether the plaintiff is entitled to any relief with respect to the transfer to Petersen of the stock of the Farragut Realty Company, and, if so, to what relief. This stock Petersen still holds, claiming that it was given him as collateral security for certain debts due from Henry Hillebrand or Hillebrand & Kluge. I am of opinion, however, that these claims, or some of them, are not genuine debts. But, assuming them to be genuine, there is a further question to be considered. If Hillebrand was actually indebted to Petersen, even in the full amount which the latter claims, but there was in fact a fraudulent intent to hinder and delay creditors by putting the debtor’s property out of his possession and out of the reach of his creditors for his benefit, the transaction was fraudulent notwithstanding the debt. Metcalf v. Moses, 161 N. Y. 587; Tompkins v. Hunter, 149 id. 117, 121. In my opinion the transfer of the stock to Petersen was with the intent on the part of Hillebrand, participated in by Petersen, that the stock should be held by the latter for the former, to keep it out of reach of the former’s creditors.

Plaintiff claims to be entitled to a personal judgment for the value of this stock, on the ground that it had a value at the time of the transfer and at the time he was maintaining supplementary proceedings on his judgment, but that it now has no value. Ordinarily a trustee of an express trust is not liable for the depreciation of securities in which he has properly invested the trust fund, unless he is chargeable with negligence; but there is abundant reason for applying a different rule to one declared a constructive trustee because of his participation in a wrongful act. In a case like the present, if Petersen had not accepted the transfer of the stock it would have remained in the judgment debtor’s hands, and could have been reached by supplementary proceedings. The transfer has prevented that and compelled the bringing of this action, during the pendency of which, it is claimed, the stock has depreciated in value. It is equitable that, if the transfer was fraudulent, the plaintiff should recover of the defendant Petersen the value of the stock as of the time when it might have been subjected to the payment of the plaintiff’s judgment, but for the transfer. This conclusion is supported by Ingersoll v. Weld, 103 App. Div. 554, 564, where the court, in an action to raise a constructive trust out of presumptive fraud based on the relations of the parties, said: “As the defendant was obligated to restore the property to the true owners upon the death of Mrs. Blanchard, his refusal so to do was a wrongful act upon his part, and the plaintiffs were authorized to resort to any remedy which would protect the property and secure its return. They were, therefore, authorized to apply for and obtain an injunction, pendente lite, restraining Weld from disposing of the property and if during that period, by reason of a decline in the value of the property, loss was entailed, such loss was a direct consequence of the act of the defendant in his refusal to surrender to the true owners the property of which he was possessed.”

It was held, however, that he could not be required to restore the property and also pay its value, and the judgment was modified so as to be interlocutory and to direct an accounting. See also Hosmer v. Tiffany, 124 App. Div. 287.

. In the case at bar, the defendants Hillebrand and Petersen both testified in supplementary proceedings in June, 1911, that the stock was worth fifty dollars a share or five times its par value, and on the trial, two years later, that it was worth nothing. Despite the claim that they made a mistake in their earlier testimony, I think they are properly held bound by their admission. The fraudulent transfer and Petersen’s participation therein have thus resulted in damage to the plaintiff to the extent of $4,400, with interest from June, 1911; and for this amount the plaintiff should have judgment against Petersen.

Judgment accordingly.  