
    Albert Glaser, App’lt, v. Daniel Carroll et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Creditor's action--Trust.
    In an action to subject real estate owned by a wife to the claims of her husband’s creditors and for moneys alleged to have been received by her in fraud of such creditors, testimony of the husband that certain mortgages had been paid off and that his wife received the money through him is insufficient in itself to sustain the charge of fraud.
    2. Same—Evidence.
    Id such an action evidence in relation to real estate not referred to in the complaint is irrelevant.
    Appeal from' judgment dismissing complaint, rendered at special term, in an action to subject certain real estate to the operation of a trust in favor of a creditor.
    
      Benno Loewy, for appl’t; Barley & Prendergast, for resp’ts.
   Per Curiam.

This is a creditors’ action to subject certain real estate belonging to the defendant Catherine M. Carroll to the payment of a judgment recovered by plaintiff against her husband, Daniel Carroll. The question whether the property sought to be thus subjected was held by Mrs. Carroll in fraud of her husband’s creditors was one of fact, and we see no reason to distrust the finding of the special term in her favor. The evidence entirety failed to sustain the plaintiff’s charges with regard to the real estate specified in the complaint. Much of the evidence had relation to property in this city not referred to in the complaint, and this evidence was consequently irrelevant to the main issue with regard to the Brooklyn property. The claim is made, however, that a considerable sum of money was received by Mrs. Carroll from mortgages upon this New York property, and that these moneys belonged to her husband, and should be accounted for under an independent section of the complaint charging Mrs. Carroll genererally with receipt of moneys in fraud of creditors. Even in this particular the evidence is not sufficiently clear to warrant us in disturbing the findings of the special term. The defendant, Daniel Carroll, testified, it is true, that most of these mortgages had been paid off, and that his wife received the money through him. This testimony was insufficient in itself to establish the plaintiff’s charges of fraud. But the defendants claim, and the case is not without evidence to support it, that certain of the mortgages in question were made after Mrs. Carroll had become the owner of the property, and that whatever money she received out of such property was realized after her purchase. In view, also, of the fact that the claim with regard to this particular property is not referred to in the complaint, and is not made the subject of a direct issue, we think the complaint was properly dismissed, and that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.  