Allison v. Weller

The plaintiff, sues as receiver, appointed under an order in supplementary proceedings, against defendant Theron Weller. His action is to set aside a conveyance in fraud of creditors made to defendant William E. Weller. Theron Weller demurs on the ground: 1. That Theron Weller should not have been made a party. 2. That the complaint as to him does not state facts sufficient to constitute a cause of action.

The demurrer, of course, admits the facts stated by the complaint, and it must be taken as admitted, that the defendant, in fraud of his creditors, and in defiance of the statute, conveyed to the other defendant the property sought to be reached. That the judgment debtor, who made such a conveyance, is a proper defendant in principle is apparent, and is also on authority. See Vanderpool v. Van Valkenburgh, 6 N. Y. 190, 199; Bostwick v. Menck, 40 id. 383.

It would answer no useful purpose to cite authorities on the other point, where as here the judgment and return of the éxecution unsatisfied, the appointment of a receiver, and fraudulent conveyance is admitted to show that that is a cause of action. It is too clear.

The order should be affirmed.

Order affirmed.