Emma Buongierno, as Administratrix, etc., of Ruggiero Buongierno, Deceased, Respondent, v. Theresa Schiller, Appellant, Impleaded with George Schiller

Second Department, April, 1906. Emma Buongierno, as Administratrix, etc., of Ruggiero Buongierno, Deceased, Respondent, v. Theresa Schiller, Appellant, Impleaded with George Schiller. Fraudulent conveyance -—judgment canceling deed of real estate as made to defraud • a_ creditor— insufficient evidence of fraud of grantee—new trial. Appeal hy the defendant Theresa Schiller from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 38th day of June, 1904 - • [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The judgment declares that a certain deed of real estate executed by the defendant George Schiller to the appellant, Theresa Schiller, is null and void and should he canceled of record. This -judgment is. founded upon a decision that the deed was made by the grantor for the purpose of hindering and delaying and defrauding a creditor, namely, the plaintiff’s decedent. The grantee alone appeals. There js no finding that the deed was accepted hy the grantee with a fraudulent intent, of that the grantee knew, or shared^ in the fraudulent intent of the grantor. While there is some slight evidence in the record on which such a finding might possibly he based, we think it best, under the circumstances that a new trial should be granted. (See Wadleigh 'v. Wadleigh, 111 App. Div. 367.) Woodward,, Jenks and Rich, JJ., concurred.' Judgment reversed and new trial granted,'costs to abide.the final award of costs! .