Kuhlbarsch v. Sauter

Order affirmed, with ten dollars costs and disbursements. Memorandum: While the former action was between the same parties it did not involve the same issues. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) In this action it is necessary for plaintiff to prove that she was a creditor of her deceased husband and that his transfer of his real estate to defendant was for an inadequate consideration and made him insolvent. In the former action these issues were not involved. That was an action to set aside the same transfer on the ground that it was made for the purpose of defrauding plaintiff of her widow’s rights under the Decedent Estate Law. In that action plaintiff’s status as a creditor and decedent’s insolvency were not issues. In this action she may prove that she was a creditor by reason of his having failed in his duty of support. (Decker v. Decker, 108 N. Y. 128; DeBrauwere v. DeBrauwere, 203 id. 460.) All concur. (The order denies defendant’s motion to dismiss the complaint in a creditor’s action to set aside the transfer of realty.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.