George P. Tisdale, Appellant, v. Martin Rider and Another, Impleaded with Rose E. Rider, Respondent

George P. Tisdale, Appellant, v. Martin Rider and Another, Impleaded with Rose E. Rider, Respondent. Fourth Department, May 1, 1907. Debtor and creditor — when transfer by husband to wife in consideration of annulment of decree of separation will not be set aside at suit of creditors. When, after a decree of separation obtained by a wife from her husband on service by publication, the husband has recognized the validity of a decree.imposing alimony and the validity of sequestration -proceedings to enforce the. same, and thereafter, in consideration of a reconciliation and a vacating of the judgment and sequestration, he assigns' to his wife his interest in a legacy, the assignment will not be set aside at the suit of judgment creditors of the . husband. Although the decree was obtained on service by publication, the husband is the only person interested in avoiding that part of the judgment which required him to pay alimony, and if he recognizes its validity the vice in the decree is . cured. • ,. Such assignment cannot be attacked for lack of consideration when it appears' ' that under-.the tables of mortality the wife’s alimony would exceed the amount of the sum transferred. . Appeal by the. plaintiff, George P. Tisdale, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk óf the county of Erie on the 28th day of Bovember, 190'6, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the complaint. The action is by a judgment creditor'of Martin Rider to set aside an assignment from said Rider to his wife, the respondent, on the ground that the same was made in fraud of his creditors. . The facts \yere stipulated on the trial. The Riders were married in 1879 -in the State of New York and lived together in this State as husband and wife until in the year 1990. There were two children of the marriage, one a minor at the time of the judgment hereinafter described. In March, 1900, Rider abandoned his wife, and in October, 1904, she commenced an action of separation against him in this State on the ground of abandonment. The summons was served upon Rider pursuant to an order for publication. He did not appear and judgment was obtained by default January 19, 1905, decreeing a separation from bed and board and awarding to the wife for her" support'and maintenanee $260 annually in weekly payments of $5 each from the date of the entry of the judgment. The decision of the court and judgment entered recite that there were “ due proof of the service of the summons on said defendant ” and his default. The plaintiff in that action was unable to collect the allowance awarded to her, and commenced sequestration proceedings to reach a legacy of upwards of $1,500, the money to pay which was then in the custody of the defendant Seymour Eider, as executor of Addison Eider, deceased, who was the donor. The order of sequestration was entered in March, 1905, and a receiver appointed of the property sequestrated. The receiver was directed to pay the costs in the separation action and the allowance for support and maintenance, and during his administration of the receivership, in pursuance to the order, he paid costs, the arrears of the alimony and the weekly allowance as it matured, in all abdut $400, The order of sequestration was personally served upon the executor and it enjoined him from disposing of the legacy, except to the receiver, until the further order of the court. In February, 1906, Eose and Martin Eider met in Buffalo and entered into an agreement whereby the wife agreed to live with her husband and to cause the separation judgment and the sequestration order to be vacated. In consideration of the vacation of said judgment and order and the renewal of their marital relations, the said Martin Eider, by an instrument in writing, formally assigned to his wife the amount of the legacy unpaid, and directed the executor to pay the same to her. The executor before the commencement of this action complied with said order to the extent of paying to the wife $1,000, which shé invested in purchasing a home. The parties then joined in a petition to the Supreme Court asking that the separation judgment and sequestration order be set aside, and an order was granted conformably to the petition. In 1890 the plaintiff had recovered a judgment in Supreme Gourt against Martin Eider for $153.27, which was unpaid. In 1906 an action was commenced on this judgment, and judgment was rendered. There was also another judgment recovered in 1891 and sued over in 1906, which was assigned, to the plaintiff before the commencement of this action. It is stipulated that Eose Eider did not- know of the existence of the claims which were the foundation of the judgment; and also, that there was no intent on her part in accepting the benefits of the assignment of the legacy to hinder or defraud the creditors of her' husband; nor did she know that he was actuated by any such' intent. • It was .further stipulated “that the defendant Rose E. Rider, has been continuously 'a resident of the State of New York . from the time of the marriage to the time of the rendering of the judgment. That the defendant Martin Rider deserted the defendant Rose'E. Rider within the State of New York. That no ques-tion has been raised by the plaintiff in this action as to'the jurisdic- ■ tion of the court or to the regularity of the judgment of separation or the order of sequestration, except, as the,same is affected by the fact that the defendant Martin Rider was not personally served with the summons, or notice and was only served .by publication, and did'not appear in the separation action,, otherwise than above stipulated.”. Manly E. King, for the appellant, ■ Asher B. Emery, for the respondent Rose E. Rider. [MAJORITY — Spring, J.:] Spring, J.: The appellant’s counsel impugns the validity of the judgment awarding alimony to the wife on the ground that the husband was not personally served with the summons. Although the judgment recites that it was awarded upon 'the due “ service of the sutwin ons,” we will assume that no jurisdiction was acquired of the defendant in the separation action authorizing the recovery of the . money judgment. The service by publication was sufficient ■ to decree a separation, and the husband was the only person interested in the avoiding of the judgment requiring him to pay the weekly allowance' for the maintenance of his wife, and he never questioned its verity, After the order in the sequestration proceedings and after $400 had-been paid from his property pursuant to that order, he voluntarily joined with his wife in the petition asking the court to set aside both the judgment and order. The request for this remedy was not founded' on their invalidity or on the defective service of the summons- in the separation action, but -upon the assignment, which is noW challenged by the plaintiff. He, therefore, appeared voluntarily recognizing the verity of the judgment, and his general appearance and his submission to the jurisdiction of the court for the purpose of procuring the satisfaction of the judgment and order cured whatever vice there may have been in the incidental part of the judgment charging him with the payment of alimony. (Lynde v. Lynde, 162 N. Y. 405.) The judgment in the separation action contained the provision that the “ parties may, at any time hereafter by their joint petition, apply to this court to have this judgment modified or discharged.” Pursuant to this authority the parties did appear to secure its discharge upon facts which must have satisfied tlie court that it was advisable and beneficial to the parties interested to vacate the judgment. Had they appeared and asked for a modification of the judgment changing the weekly rate to be paid by Rider, he would . have been effectually foreclosed thereafter from repudiating the judgment for the reason that he was not personally served with process in this State. He could not both recognize and disavow the judgment. Certainly his' judgment creditors would not stand in a better situation than Rider himself to nullify the judgment. It is contended that the assignment of the bequest must be based on a valuable consideration and none existed. The record shows,' as already stated, that Mrs.' Rider' had no knowledge of the obligations of her husband to the plaintiff, and had no intent to hinder, delay or defraud his creditors in accepting the property assigned to her. . The stipulation is, however, that while the transfer to the wife did not. take all his property, there was not sufficient remaining to pay his debts in full. We will, therefore, assume that she must establish that there was an adequate consideration for the assignment to uphold it. (Starin v. Kelly, 88 N. Y. 418; Wadleigh v. Wadleigh, 111 App. Div. 367.) We think she has fully met this burden. She was. forty-eight years of age at the time of the transfer to her and her life expectancy was twenty-two and one-half years. She had already received by virtue of the judgment and sequestration proceedings for her maintenance and costs $400. She had a right to believe that the weekly payments would continue to be made for her support as long as the funds lasted, and if she lived out her expectancy the entire legacy would.be paid to her long before she reached'that period. • We cannot assume for the purpose .of enabling the judgment creditor to deprive her of the benefit of this assignment that the judgment would have been vacated. It' was valid on its face. It had been operative for her benefit and' the husband seemed willing to ratify it. It was a valuable asset to her. T-Ifis judgment and the sequestration order she.permitted to'be canceled as a considerasion for the assignment to her. She did not do this until her husband by uniting with her in the petition acknowledged its validity. The judgment vested a substantial property right in her which became fixed and effective' as a lien upon the bequest by the sequestration order and the appointment of the receiver with the direction to pay her the arrears of alimony and the weekly allowance. (Livingston v. Livingston, 173 N. Y. 377.) This property right she relinquished, taking other property in its stead. . The appellant’s counsel urges that the judgment for alimony was not a debt. In Romaine v. Chauncey (129 N. Y. 566], relied upon for this'proposition, a judgment creditor of the wife attempted to reach, alimony allowed to her in a decree dissolving the marriage contract. The debt of the judgment creditor was contracted prior to the granting of the decree. " The court held tliat the allowance • for maintenance was not'a debt amenable to the payment of the obligation created before the alimony was awarded. It further held that the allowance was a continuance of the general duty of the husband to support his wife, ^ changed into a .specific duty over . whiclq not lie, but the court, presides.” Further, if' the judgment creditor were permitted to seize upon the allowance the decree of the court would be perverted and the “ humane intent of the law ” ■ destroyed. The court did not hold, that the allowance for support was not a property asset and capable of constituting a valuable consideration. In Wetmore v. Markoe (196 U. S. 68), which is similar' .to other cases, cited on appellant’s brief, the husband, who was chargeable with the payment of alimony by'the decree of divorce, by his discharge in bankruptcy claimed he was releaséd from .the payment for the support of.his wife and children. The. court held that the judgment for alimony was not a provable debt within' the meaning of subdivision a of section 63 of the Bankruptcy Act (30 IT. S. Stat. at Large, 562), and that the • payment of the alimony was merely the performance of a duty imposed upon the husband by law to' provide for his wife and children and such duty would not be .terminated by the discharge in bankruptcy. It is not important, what name is attached to the judgment directing the husband to pay the specific sum by the week or month to his wife to provide for the sustenance of herself and children. It is an ascertained sum and will purchase commodities and is tangible, and will afford a good consideration for what it represents. It may be, if the property assigned had been manifestly dispro- - portionate to the" respondent’s interest in the bequest, a court of equity would set aside the transfer on the ground that the transaction was in fraud of the fights of the creditors of the husband. In this case the payment of the $260 annually would in a few years ' consume the entire legacy, so what she surrendered was equivalent to the amount transferred to her. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.