Smith v. Kissam

Appeal from an order of the Supreme Court at Special Term, entered October 9, 1945, in Bronx County, which granted a motion by respondent for a dismissal of the complaint as to said defendant on the ground that it does not state facts sufficient to constitute a cause of action.

Per 'Curiam,.

Giving every fair intendment to the allegations of the complaint we deem the pleading sufficient to establish at least prima facie that plaintiff was a creditor who was entitled to bring an action to set aside fraudulent transfers of his debtor’s property (see Brooklyn Savings Bank v. Neumann, 251 App. Div. 264).

If defendant-respondent desires to urge-that the present action would deprive her of any rights afforded her by section 1083 or section 1083-a of the Civil Practice Act, she may assert same by way of affirmative defense (Brooklyn Savings Bank v. Neumann, supra).

The order dismissing the complaint should be reversed, with $20 costs and disbursements to the appellant, and the motion denied, with leave to the defendant-respondent to answer within ten days after service of a copy of the order with notice of entry thereof, on payment of said costs.

Cohn, Callahan, Peck and Van Voorhis, JJ., concur; Martin, P. J., dissents and votes to affirm.

Order reversed, with $20 costs and disbursements to the appellant, with leave to the defendant-respondent to answer within ten days after service of the order, with notice of entry thereof, on payment" of said costs. [See 272 App. Div. 756.]