Lichtenberg v. Herdtfelder

• Decision Date: 05 October 1886
• Citation: 8 N.E. 526,103 N.Y. 302
• Parties: LICHTENBERG v. HERDTFELDER and others.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 302

8 N.E. 526

LICHTENBERG

v.HERDTFELDER and others.

Court of Appeals of New York.

October 5, 1886.

Appeal from the general term of the supreme court in the First department.

The complaint in this action shows the following facts: In 1873, George Herdtfelder, for the purpose of securing the payment of $4,000, with interest, executed and delivered to the plaintiff his bond, and, as collateral thereto, a mortgage upon real estate, executed by himself and the defendant Elizabeth, his wife. Subsequently, in the years 1874 and 1875, Herdtfelder and wife conveyed certain real estate, by several deeds, to the defendant Heinlein, and certain other real estate, by several deeds, to the defendant Kreuder; and subsequently, in the life-time of Herdtfelder, Heinlein and Kreuder, by several deeds, conveyed the same real estate to the defendant Elizabeth; and all these conveyances were without consideration, and made with intent to hinder, delay, and defraud the creditors of George Herdtfelder. He died September 21, 1876, leaving a last will and testament, in which he nominated his wife and Frederick Fink and Charles T. Stephan as executors. The will was admitted to probate, and the three executors named duly qualifed as such, and took upon themselves the duties of executors. Thereafter, in April, 1877, the plaintiff commenced an action to foreclose his mortgage, in which the executors and others were made defendants. There was a judgment of foreclosure, and a sale, and a deficiency of $3,126.96, for which a judgment was entered and docketed against the executors. In September, 1878, the executors made their final accounting in the surrogate's court, in which the plaintiff's claim upon his judgment was admitted. The whole value of the estate in the hands of the executors was the sum of $528.45, which was wholly inadequate for the payment of the debts of the testator.

This action was commenced on the twenty-ninth day of January, 1879, against Elizabeth Herdtfelder, Heinlein, and Kreuder; and the judgment prayed for in the complaint is that the several conveyances above mentioned be adjudged fraudulent and void as to the plaintiff, and that a receiver be appointed to sell the real estate conveyed, or so much thereof as may be sufficient to satisfy plaintiff's judgment. The defendants Elizabeth and Heinlein appeared, and answered, putting in issue the allegations of fraud. The defendant Kreuder did not answer. The action was brought to trial at a special term, and, before any evidence was given, the counsel for the defendants moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the court granted the motion, and gave judgment to the defendants dismissing the complaint. From that judgment the plaintiff appealed to the general term, and, from affirmance there, to this court.

F. R. Coudert, for appellant, Charles Lichtenberg.

Isaac Kugelman, for respondents, Elizabeth Herdtfelder and others.

EARL, J.

It appears from the opinion of the judge who presided at the special term that he gave judgment against the plaintiff for the reason that he had not obtained leave to sue under section 1628 of the Code. At the general term, as appears from the opinion there pronounced, the judgment was affirmed because no execution had been issued upon plaintiff's judgment. We think this action is without precedent, and that the judgment should be affirmed, but not for the precise reason stated in the courts below. Plaintiff's judgment obtained subsequently to the death of the testator, in an action against his executors in their representative capacity, did not become a lien upon any real estate left by him, and no execution could be issued thereon against any real estate. It was provided in the Revised Statutes (2 Rev. St....