Termini v. Huth
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Philip J. Termini, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of July, 1917, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint at the close of the plaintiff’s case.
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Appeal by the plaintiff, Philip J. Termini, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of July, 1917, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint at the close of the plaintiff’s case. Plaintiff sought to set aside as fraudulent two conveyances of real estate executed by the bankrupt on October 4, 1913. On August 5, 1913, Edward C. Schlueter, as administrator of the goods of Frank Schlueter, deceased, had begun an…
1Opinion of the Court
Putnam, J.:
Although the appellant did not file a formal exception to the nonsuit (Code Civ. Proc. § 994) this was not jurisdictional, but simply a matter of procedure (People v. Journal Co., 213 N. Y. 1), so that this court can permit an exception to be filed. Therefore, we treat the appeal on the merits. The determination of the burden of proof must be decisive.
Could the trustee prevail here merely on producing these conveyances, apparently not founded on a valuable consideration? The Real Property Law, section 265, declares: “ A conveyance or charge shall not be adjudged fraudulent as…
2Cases cited3 opinions
- Smith v. . ReidNew York Court of Appeals · 1892
- Kerker v. . LevyNew York Court of Appeals · 1912
- People v. . Journal Co.New York Court of Appeals · 1914
3Cited by7 opinions
- In Re the Estate of FindlayNew York Court of Appeals · 1930
- Marcus v. KaneCourt of Appeals for the Second Circuit · 1927
- Becker v. FrankelDistrict Court, E.D. New York · 1922
- Green v. KrongoldAppellate Division of the Supreme Court of the State of New York · 1931
- In re the Estate of DeckerNew York Surrogate's Court · 1933
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