Sophie D. Cohen et al., as Sole Surviving Executors of William W. Cohen, Deceased, Appellants-Respondents, v. Carita Noda et al., Respondents; Japan Cotton & Silk Trading Co., Inc., Respondent-Appellant, et al., Defendants

Sophie D. Cohen et al., as Sole Surviving Executors of William W. Cohen, Deceased, Appellants-Respondents, v. Carita Noda et al., Respondents; Japan Cotton & Silk Trading Co., Inc., Respondent-Appellant, et al., Defendants. [MAJORITY] Judgment creditors’ action to set aside fraudulent transfers of money from a debtor to his wife and daughter, in which defendant Japan Cotton & Silk Trading Co., Inc., by counterclaim in an amended answer, and cross complaints in a supplemental answer, seeks recovery of the sum of $40,000 as a wrongful diversion from it or, in the alternative, judgment on unpaid notes in that amount given to it therefor. Plaintiffs appeal from so much of the judgment as dismisses the amended complaint at the close of plaintiffs’ ease. Defendant Japan Cotton & Silk Trading Co., Inc., appeals from so much of the judgment as dismisses its counterclaim and cross complaints in accordance with a finding that the sum of $40,000 was a gift from it to defendant Carita Moda. Judgment modified on the law and the facts by striking out the provision dismissing the cross complaints of the defendant Japan Cotton & Silk Trading Co., Inc., and awarding costs, and by providing in lieu thereof for judgment to defendant Japan Cotton & Silk Trading Co., Inc., against defendant Carita Noda as prayed for in its cross complaints, with costs. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, without costs. The sum of $40,000 which the debtor Moda, in complete charge of the business of defendant Japan Cotton & Silk Trading Co., Inc., caused to be withdrawn from the capital of that corporation and paid to his wife, was not a gift from the corporation. If not an unauthorized illegal diversion of corporate funds, it was, at least, a loan, as admitted in pleadings of defendant Carita Moda, who accepted and used the money and gave notes therefor in accordance with the direction of her husband who, more than anyone else, was aware of the nature of the transaction. Findings inconsistent with the foregoing are reversed and it is found, instead, that the sum of $40,000 received by defendant Carita Moda was a loan to her from defendant Japan Cotton & Silk Trading Co., Inc., and constituted valid consideration for the notes executed by her and delivered to that corporation. Present — Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ.