
    James T. Maxwell and William L. Maxwell, Respondents, v. William Conklin, Francis B. Conklin and Edward H. Conklin, Appellants.
    
      Judgment cnid execution returned unsatisfied as evidence of insolvency — voluntary conveyance presumptively fraudulent.
    
    The recovery of a judgment by default, in an action upon a promissory note, and the return of an execution unsatisfied, are prima facie evidence of the insolvency of the judgment debtor.
    
      A voluntary conveyance by an insolvent debtor is presumptively fraudulent.
    Appeal by the defendants, William Conklin 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 Kings on the 23d day of July, 1898, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Horace G. Lansing, for the appellants William and Edward H. Conklin.
    
      Rollin Tracy, for the appellant Francis B. Conklin.
    
      G. B. Van Wart, for the respondents.
   Goodrich, P. J.:

On May 21, 1897, the plaintiffs, in an action on four promissory notes, recovered judgment by default, against the defendants William and Francis B. Conklin for the sum of $3,576.57. After entry of the judgment, execution was duly issued and returned unsatisfied and the said defendants were afterward examined in proceedings supplementary to execution. At the time of the institution of the above action the said defendants were owners of certain real estate in the borough of Brooklyn. A portion of this real estate consisted of a stone yard where they were carrying on their business and in connection with the operation of which they owned certain tools and other personal property. Previously to the recovery of the judgment above mentioned, by two deeds, dated April nineteenth, and a bill of sale of the same date, William and Francis transferred all their interests in this property to the defendant Edward H. Conklin, their younger brother, the consideration being “ one dollar, and other lawful considerations.” These instruments were not recorded until May twentieth, the day before the recovery of the judgment in the above action on the notes. The present action is brought to set aside the conveyances of April nineteenth as a fraud upon the plaintiffs, and the court below gave judgment for the plaintiffs, adjudging the deeds and bill of sale to be fraudulent and void, and the property affected by them to be subject to the lien of the judgment and execution in favor of the plaintiffs. From this judgment the defendants appeal.

The recovery of the judgment by default in the action on the dishonored notes and the return of the execution unsatisfied was prima facie evidence of the insolvency of the defendants William and Francis. (Tuthill v. Skidmore, 124 N. Y. 148.) And it has been held that a voluntary conveyance by one indebted at the time is presumptively fraudulent. (Smith v. Reid, 134 N. Y. 568.) The Revised Statutes (9th ed. vol. 2, p. 1887, § 1) provide that 1 “ Every conveyance or assignment, in writing or otherwise, of any . estate or interest in lands, or in goods, * * * made with the intent to hinder, delay or defraud creditors or other persons, of their lawful suits, damages, forfeitures, debts or demands, * * * as against the persons so hindered, delayed or defrauded, shall be void.”

After the plaintiffs had made out their case, the defendants, to show good faith and absence of fraud, testified that several years before the execution of the deeds and bill of sale in question an uncle had given to their mother several thousand dollars to be used in the education of the defendant Edward; that the mother, who at the time of the trial was dead, had given this money to the defendants William and Francis to use in the stone business, and that long after it had been there used the deeds and bill of sale were given to Edward in place of the money. The testimony on this subject was vague; the defendants did not know where the uncle lived when he died, whether he left a will, or how the money came to the mother. The learned justice at Special Term found that the deeds and bill of sale were made without consideration in anticipation of the judgment of May twenty-first, and for the purpose of defrauding the plaintiffs and preventing them from collecting the amount of said judgment.'

This is a case where much depends upon the manner of the witnesses on the stand, as to which the justice presiding at the trial may best determine, and after a careful examination of the printed testimony, we see no reason to interfere with the judgment.

Judgment unanimously affirmed, with costs.  