Palm Holding Corp. v. Elband , 1937 N.Y. App. Div. LEXIS 5532 ( 1937 )

Appeal from a judgment of the Supreme Court entered in Sullivan county on August 7, 1937, on the report of an official referee. The defendant Elband was the owner of real property in Sullivan county, and on May 15, 1933, gave a mortgage thereon for $6,000 to the plaintiff corporation. On December 19, 1934, she conveyed a half interest in the property to the plaintiff corporation, and at the same time received a satisfaction of the mortgage. On May 27, 1935, and before said deed was recorded, the same grantor conveyed the entire property to the defendant Ethel Hendler (as though the half undivided interest had not been conveyed to the plaintiff). Of all these facts the defendant Ethel Hendler had notice. The plaintiff seeks in this action a judgment declaring the deed to Ethel Hendler fraudulent and void. The defendants contend that the mortgage of $6,000 was procured by the plaintiff through misrepresentation and fraud, and without consideration, as was the deed of the half interest given upon the satisfaction of the mortgage. The defendants admitted on the trial that they intended to commit fraud on one or more possible creditors when the mortgage was given: while the plaintiff insists that the mortgage was given for advances of money and for improvements to the property effected by the plaintiff. The official referee, after observing and hearing the witnesses, refused to credit the evidence of defendants, and granted judgment declaring void the deed of Regina Elband to Ethel Hendler, and requiring the defendants to account to the plaintiff for the income of the property. The evidence justified this determination. Judgment unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ.