not being in conformity with the requirement that it should be to pay in the event of the service being held good, was abandoned On May 9, 1912, an order for the defendant's examination in supplementary proceedings was issued and served. On May 15, 1912, defendant's motion to stay his examination in supplementary proceedings was denied. On May 16, 1912, defendant moved to open the default and for leave to serve and file a new bond, which complied with the order of April 8th. The motion was heard before another justice, who granted it on May 17, 1912, by the order appealed from. Having, after the motion had been denied, given a bond which would be ineffectual unless both the referee and the court were adverse to him, the defendant waited nearly a month and then moved before another justice nominally to reopen a default which did not exist, but really to reverse and vacate the decision of April 8th that the bond to be given thereunder must be made and filed within four days or the motion would be denied. The practice of renewing before one justice a motion which had been denied by another, without leave of the court, will not be tolerated. Garner v. Hellman, 47 Misc. Rep. 336, 337, 93 N. Y. Supp. 431. The adjudication in the order of April 8th that, unless defendant filed a bond in a prescribed form within four days, the motion to vacate would ipso facto be denied, and, in the order of May 16th, that a stay of his examination in supplementary proceedings should be refused, cannot be evaded by first filing an irregular bond in defiance thereof, and, when that fails, making a motion in the guise of a motion to open a default, but really to vacate, reverse, and annul the prior order. Childs v. Childs, 144 App. Div. 168, 169, 128 N. Y. Supp. 782; Haskell v. Moran, 117 App. Div. 251, 252, 102 N. Y. Supp. 388; In re Cullinan, 109 App. Div. 816, 817, 96 N. Y. Supp. 751; Tracy v. Falvey, 102 App. Div. 585, 588, 92 N. Y. Supp. 625.

Order reversed, and motion denied, with $10 costs of motion and $10 costs and disbursements of the appeal. All concur.

(78 Misc. Rep. 40.)

STELL et al. v. BRITISH UNION & NATIONAL INS. CO., Limited, et al. (Supreme Court, Appellate Term, First Department. October 23, 1912.) EXECUTION (§ 388*)—EXAMINATION-SUFFICIENCY OF MOVING PAPERS.

A third party order was procured in supplementary proceedings for the examination of the president of a company who appeared for examination, but a motion was made to vacate the order for insufficiency of moving papers, and in opposition to such motion plaintiff's attorney submitted an additional application to obviate the alleged defects in the moving papers for an examination, and the court denied the motion to vacate, and at the same time gave plaintiff leave to file an additional affidavit, but none was filed. Held, that the denying of the motion to vacate, coupled with the leave to file an additional affidavit, was, in effect, a holding that the original motion papers were insufficient, so that the order for examination must be deemed to have been granted only •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

upon the filing of the additional affidavit, and, none having been filed, plaintiff could not proceed with the examination.

[Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1126, 1127; Dec. Dig. § 388.*]

Appeal from City Court of New York, Special Term.

In the matter of supplementary proceedings of David Stell and another, copartners doing business under the firm name of Philadelphia Dress Company, judgment creditors, against the British Union & National Insurance Company, Limited, judgment debtor, and the C. N. Pinkney Company. From an order adjudging the president of the latter company in contempt for refusing to answer questions, the company appealed. Reversed, and motion denied.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

William A. Walling, of New York City, for appellants.
Wm. Otis Badger, of New York City, for respondents.

GUY, J. Appeal by the C. N. Pinkney Company from an order adjudging the president of the C. N. Pinkney Company in contempt of court in refusing to answer questions upon an examination under an order in supplementary proceedings. The judgment creditor procured a third party order for the examination of the C. N. Pinkney Company, a corporation of which Charles N. Pinkney is president. The president of the company appeared for examination; but, during the progress of the examination, a motion was made to vacate the order upon the ground of the insufficiency of the moving papers. In opposition to the motion, plaintiff's attorney submitted an additional affidavit for the purpose of overcoming alleged technical defects in the moving papers. The court denied the motion to vacate the order, at the same time giving plaintiff leave to file an additional affidavit. Plaintiff, however, failed to file such affidavit, though he served upon defendant's attorney a copy of the additional affidavit submitted to the court upon the motion and paid the defendant's attorney the $10 costs allowed to the third party on the denial of the motion. Plaintiff then insisted upon proceeding with the examination. The third party, the C. N. Pinkney Company, refused to proceed until the affidavit was filed, and the witness, acting under advice of counsel, refused to answer any further questions. A motion was made to punish the third party, the C. N. Pinkney Company, for contempt. The motion was heard, and an order made punishing C. N. Pinkney individually for contempt, from which order this appeal is taken.

By its decision upon the motion to vacate, coupled with the granting of leave to file an additional affidavit, the court in effect held that the original motion papers were insufficient, and the motion must be deemed to have been granted upon the filing of the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

additional affidavit. The affidavit not having been filed, the plaintiff was not entitled to proceed with the examination, and the refusal to submit thereto did not constitute a contempt either on the part of the C. N. Pinkney Company, or individually upon the part of Pinkney, its president.

The order must therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

NUGENT v. FOLEY.

(Supreme Court, Trial Term, Wyoming County. August, 1912.)

1. FRAUDULENT CONVEYANCES (§ 80*)-BENEFITS RESERVED TO GRANTORSUPPORT Or Care.

A conveyance of all a person's property, real and personal, in consideration of the transferee's agreement to maintain and support the transferror during his lifetime, pay his funeral expenses, and also pay a few small store bills, is void as against existing creditors of the transferror. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. 88 206-209; Dec. Dig. § 80.*]

2. FRAUDULENT CONVEYANCES (§ 168*)-CONVEYANCES IN TRUST for Grantor. A transfer by a debtor of all his property, real and personal, without consideration, in trust for his benefit during life, and after his death for the payment of debts, is conclusive evidence of fraud as to existing creditors, and the innocence of any fraudulent intent on the part of the transferee will not protect his title.

[Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 494, 520; Dec. Dig. § 168.*]

3. LIS PENDENS (§ 22*)-PROOF AND EFFECT-EFFECT ON PRIOR UNRECORDed CONVEYANCE.

Code Civ. Proc. § 1671, providing that, after a notice of the pendency of an action is filed, a person whose conveyance or incumbrance is subsequently executed or subsequently recorded is bound by the proceedings in the action after the filing of the notice to the same extent as if he was a party thereto, does not enable a party by filing a lis pendens to acquire an interest in the property described therein superior to the rights of another under an unrecorded deed, who is not made a party to the action.

[Ed. Note. For other cases, see Lis Pendens, Cent. Dig. §§ 31, 34-37; Dec. Dig. § 22.*]

4. FRAUDULENT CONVEYANCES (§ 194*)-REMEDY WHERE RIGHTS OF THIRD PERSONS HAVE INTERVENED.

Where a fraudulent conveyance could not be set aside, because the rights of a third person had intervened, but a part of the purchase price due from such third person had not been paid to the fraudulent grantee, but was held pending the outcome of the litigation, it could be proceeded against in lieu and substitution of the property fraudulently transferred. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 608-610; Dec. Dig. § 194.*]

Action by Margaret Nugent, individually and for the benefit of all other creditors of Jeffrey Powers, deceased, against Anastasia Foley, to set aside a conveyance of certain real property. Judgment for plaintiff.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-45

Michael L. Coleman, of Warsaw, for plaintiff.
Woodworth & Greff, of Warsaw, for defendant.

WHEELER, J. In June, 1911, Jeffrey Powers died intestate and childless. His wife had died the previous March. Both, at the times of their death, were advanced in age, and for some time prior to their death in feeble health. In the month of February, 1909, the decedent caused a letter to be written to the plaintiff, who was a sister of Mrs. Powers, requesting Mrs. Nugent and her husband to come to the decedent's home in the town of Covington, Wyoming county, and assist in caring for the decedent and his wife, and to perform labor upon the decedent's farm. The plaintiff and her husband thereupon broke up their home in Brooklyn, and came to the decedent's home, under an agreement that they should be well paid for their services.

I think the evidence fully and fairly sustains the plaintiff's claim, not only that these services were rendered upon a clear understanding that the plaintiff would be compensated for what was done, but also that the fair value of the services rendered by the plaintiff was the sum of $310. All the plaintiff ever received on account of these services was the sum of $4.50, the proceeds of certain cream money from cows on the farm. Consequently the decedent's estate is indebted to the plaintiff in the sum of $305.50, with interest from April 1, 1911.

After his wife's death, the defendant, a niece of the decedent, came to live with him, and the plaintiff returned to Brooklyn. On March 21, 1911, while the plaintiff's claim remained unpaid, Jeffrey Powers, the decedent, transferred all his property, real and personal, to the defendant. The consideration for these transfers was the agreement by the defendant to maintain and support the grantor during his lifetime, and pay his funeral expenses after his death, and also to pay a few small store bills owing by the defendant.

This action was commenced on August 7, 1911, at which time the lis pendens, together with the verified complaint, was filed in the office of the clerk of Wyoming county. This action is to set aside the conveyance so made, as fraudulent against the creditors of the decedent, and is prosecuted, not only for the benefit of the plaintiff, but for the benefit of all such creditors.

On August 3, 1911, however, prior to the commencement of this action, the defendant conveyed said real estate to one Martin Weiler. She remained in the apparent possession of the farm, and the deed to Weiler was not placed on record until September 12, 1911. Such conveyance was not known to the plaintiff at the time of the commencement of this action. Weiler knew at the time that the plaintiff was asserting claims against the estate. Weiler was a witness on this trial, and practically admitted that he knew of the plaintiff's claim when he negotiated for the purchase of the farm and took the deed to it. The agreed purchase price of the place was $3,100. Of this Weiler paid the defendant $1,000 down, and bor

rowed the sum of $2,100 of one Quinlan, to secure which he gave Quinlan a mortgage on the property, under an arrangement between the defendant, Weiler, and Quinlan that said amount should be placed in the bank at Wyoming to await the determination of this action, and supposedly to take care of any claims established against the estate of the deceased.

[1, 2] It is perfectly well established that the conveyance made. by the decedent to the defendant under the circumstances was void as against the existing creditors of the decedent. A transfer by a debtor of all his property, real and personal, without consideration, and in trust for him and his benefit during his life, and after his death for the payment of his debts, etc., is per se conclusive evidence of fraud as to existing creditors, and no extrinsic circumstance or evidence aliunde is necessary to establish a fraudulent intent. The innocence of any fraudulent intent upon the part of the transferee will not protect his title. Young v. Heermans, 66 N. Y. 374; Kain v. Larkin, 4 App. Div. 209, 38 N. Y. Supp. 546. The right of the plaintiff to maintain this action seems fully established both on principle and by authority. It only remains to consider the form of the judgment, and the extent of the relief to be given, so as to properly protect all persons interested.

[3] Weiler, the grantee from the defendant, is not a party defendant to this action. His deed bears date August 3, 1911, but it was not recorded until September 12th following. The lis pendens in this action was filed August 7th. Inasmuch as Weiler is not a party defendant, any judgment the court may render in this action cannot bind or affect him, unless it be by virtue of the provisions of section 1671 of the Code of Civil Procedure, providing as follows:

"Where a notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person, whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action. In any action, other than an action to foreclose a mortgage or for the partition of real property or for dower, in which a notice of the pendency thereof has been filed, and in which it shall appear to the court upon a motion made as hereinafter provided, that adequate relief can be secured to the plaintiff by a deposit of money, or in the discretion of the court by the giving of an undertaking, as hereinafter provided, where the cancellation of such notice is not otherwise expressly provided for or regulated, any defendant or any other person having an interest in the property affected by the action, may apply for the cancellation of such notice. Such application shall be by motion made in the action upon notice, to be directed and approved by the court, to all the parties to the action and to such other persons as the court may direct. If the court on the hearing of the motion shall decide that adequate relief can be secured to the plaintiff and that the case is one in which the judgment sought to be enforced against the real property mentioned in said notice of pendency of action may be secured by the deposit of the amount claimed or by the giving of an undertaking, the court may make an order directing that the applicant make a deposit in court of a sum of money, or in the discretion of the court, give an undertaking with at least two suffi