Prisco v. Sack , 240 A.D. 978 ( 1933 )

Judgment reversed on the law and the facts and a new trial granted, with costs to appellants to abide the event. While we are of opinion that the plaintiff’s proof was insufficient to sustain the findings and the judgment, a new trial is granted in the interests of justice to permit plaintiff to supply further proof. There is no proof of the time when the indebtedness upon which the plaintiff’s judgment was entered in August of 1932 was incurred, nor is there any proof that defendant husband was either indebted or insolvent at the time the real property and the securities described in the complaint were taken in the name of defendant Tillie Sack. We are of opinion that evidence of the transaction between the defendants and the Bank of Manhattan Trust Company, upon which plaintiff relied, was consistent with ownership of the property in the defendant wife. The bank accepted the statements with full knowledge of the facts and for the reason that the note — the evidence of the indebtedness — was made by defendant Richard C. Sack and indorsed by defendant Tillie Sack, his wife. Findings reversed. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur. Settle order on notice.