Murphy v. Dantowitz

• Decision Date: 18 April 1955
• Citation: 114 A.2d 194,142 Conn. 320
• Court: Connecticut Supreme Court
• Parties: Sarah R. MURPHY v. Pearl DANTOWITZ et al. Supreme Court of Errors of Connecticut

Page 194

114 A.2d 194

142 Conn. 320

Sarah R. MURPHY v. Pearl DANTOWITZ et al.

Supreme Court of Errors of Connecticut.

April 18, 1955.

Douglas A. Finkelstone, Stamford, with whom was George N. Finkelstone, Bridgeport, for appellant (plaintiff).

Julius B. Kuriansky, Stamford, for appellees (defendant et al.).

Before INGLIS, C. J., BALDWIN, WYNNE and O'SULLIVAN, JJ., and COVELLO, Superior Court Judge.

BALDWIN, Associate Justice.

The plaintiff brought this action against three defendants to recover damages for personal injuries. Two of the defendants, Pearl Dantowitz and Morris B. Rettner, were described in the complaint as owners in possession and control of a tenement house in Stamford. The third defendant is The 170 Lawn Corporation, which at the time the action was brought was the holder of the record title to the premises. It will be referred to herein as the corporation.

The writ, summons and complaint are dated February 15, 1954. The complaint is in two counts. The first count alleges that the plaintiff was injured on January 16, 1954, by reason of the negligence of Pearl Dantowitz and Rettner in permitting a dangerous and defective condition to exist upon the tenement house premises at 170 Lawn Avenue in Stamford which were owned and controlled by them and where the plaintiff was a tenant. The second alleges that subsequent to the date the plaintiff was injured the defendant Rettner, acting for himself and Pearl Dantowitz, fraudulently attempted to secure from the plaintiff a general release of any claims for her injuries. This count also alleges that the premises at 170 Lawn Avenue had been conveyed to Pearl Dantowitz on July 11, 1950; that on February 4, 1954, Rettner caused to be recorded a mortgage deed upon these premises from Pearl Dantowitz to him, dated July 11, 1950, and given, purportedly, to secure an indebtedness of $50,000, which deed was not in fact acknowledged until February 4, 1954; and that, on February 4, 1954, Rettner, acting for himself and Pearl Dantowitz, caused the latter to quitclaim the premises to The 170 Lawn Corporation, which had not been incorporated until February 1, 1954. The second count alleges further that the mortgage is fraudulent and that it and the transfer of title to the corporation were made for the unlawful purpose of hindering, delaying and defrauding the plaintiff. The complaint asks $20,000 damages and that the mortgage to Rettner and the conveyance to the corporation be set aside as invalid and a fraud upon the plaintiff. It asks both legal and equitable relief.

In the writ, summons and complaint both of the individual defendants are described as nonresidents. The officer who made service attached the real estate in question, filing a proper certificate. No claim is made of any defect in service in that respect. An order of notice was issued by the court which described the two individual defendants as residents of New York, and an address for each was set forth. The order was that notice of the pendency of the action be given by depositing a copy of the writ, summons and complaint and the order of notice in the post office at Stamford by registered letter, postage paid, directed to Pearl Dantowitz and Rettner at their New York addresses. The sheriff's return shows that this was done and that both letters were returned by the postal authorities stamped 'Unclaimed.' The return shows further that personal service was made upon Rettner at Bridgeport. The service upon the corporation is not questioned. A general appearance in its behalf has been entered by counsel. Each of the individual defendants filed a plea in abatement to the action. Pearl Dantowitz claimed that she was a nonresident and owned no property in the state at the time of the service. Rettner claimed that the personal service upon him was invalid because he was a voluntary witness in the trial of a cause of action in the courts of this state at the time it was made.

The record before us contains a finding of facts on each plea. The certificate of the official stenographer shows that the defendant Dantowitz offered no testimony. Upon the plaintiff's motion, the entire record before the Superior Court, including the sheriff's return and the memorandum of decision on the pleas in abatement, were included in the finding by order of the court. This was done presumably because no testimony was taken at the hearing on the pleas in abatement. This court may take judicial notice of pertinent facts disclosed by the record in a case before us upon appeal. Hurlbutt v. Hatheway, 139 Conn. 258, 259, note 1, 193 A.2d 161; C. I. T. Corporation v. Meyers, 129 Conn. 514, 516, 29 A.2d 758. The defendants are in no position to complain if we do this because the burden was upon them to offer testimony as to the ownership of the tenement house in order to establish their pleas, and they failed to offer any. The court found that Pearl Dantowitz owned no property in Connecticut at the time the attachment was made. This finding obviously was based upon statements contained in the record. Its meaning, in the light of other facts, is not altogether clear. While a memorandum of decision cannot take the place of a finding, we can consult it to interpret a finding. Goldblatt v. Ferrigno, 138 Conn. 39, 40, 82 A.2d 152; Maltbie, Conn.App.Proc., p. 120. An examination of the memorandum of decision discloses that the court sustained the plea of Pearl Dantowitz on the theory that the legal title had been conveyed and that therefore she was not the owner of the property when the attachment was made. It held further that the plaintiff was not a creditor because her claim had not been liquidated, and that before she can proceed to set aside these claimed fraudulent conveyances she must recover a judgment in her tort action. The court cited Burakowski v. Grustas, 134 Conn. 205, 56 A.2d 461, and DeFeo v. Hindinger, 98 Conn. 578, 120 A. 314. In those cases we held that until a claim for damages in tort had been liquidated by a judgment the plaintiff was not a creditor within the contemplation of the statute, presently General Statutes, § 8295, which makes provision for the setting aside of fraudulent conveyances. Therefore, the plaintiff could not maintain an action under that statute. Upon common-law principles, however, one who at the time a transfer of property is made has a right to recover damages in tort may avoid the transfer as fraudulent if the transfer is made for the purpose of defeating his right. White v. Amenta, 110 Conn. 314, 318, 148 A. 345. The plaintiff, under circumstances such as those alleged in the complaint in this case, could incorporate in a single complaint a claim for damages in tort and a petition that a fraudulent conveyance made to defeat her claim be set aside. General Statutes, § 7819; see Burakowski v. Grustas, supra, 134 Conn. 208, 56 A.2d 461; Norwalk Shores Realty Co. v. Clark, 126 Conn. 688, 691, 14 A.2d 34; Boiselle v. Rogoff, 126 Conn. 635, 13 A.2d 753; Fine v. Moomjian, 114 Conn. 226, 228, 158 A. 241.

The first count of this complaint states a cause of action for damages in tort. The second alleges that a fraudulent quitclaim deed and a void mortgage were given to defeat the plaintiff's claim. The prayers for relief ask for damages and that the conveyances be set aside. The question is not whether Pearl Dantowitz has the legal title to the property but whether she and Rettner have interests in it which are subject to attachment. Section 2396c of the 1953 Cumulative Supplement to the General Statutes provides that attachments may be made 'against the estate of the defendant, both real and personal'. Section 2397c provides that when a defendant is not a resident or inhabitant of this state and has 'estate' here which has been attached, service may be made upon him by an order of notice as prescribed in the statute. There can be no question but that real estate fraudulently conveyed can be attached in an action against the claimed fraudulent grantor. Town of Winchester v. Moriarty, 84 Conn. 678, 682, 81 A. 965; Sanford v. DeForest, 85 Conn. 694, 698, 84 A. 111. Property fraudulently conveyed may, as to the creditors of the grantor, be treated as if no conveyance of it had been made, if proper legal proceedings are taken to appropriate it to the satisfaction of the grantor's debts. 1 Swift's Digest 277; Sanford v. DeForest, supra; Wilcox v. Johnson, 127 Conn. 539, 542, 18 A.2d 372; Pepe v. Santoro, 101 Conn. 694, 697, 127 A. 277. True, the fraudulent grantor could not invoke the power of the courts to secure a reconveyance to him, because his own fraud has shut the door of ...