Fourth Department, July, 1911. [Vol. 146. and, hence, within the prohibition of section 835 of the Code of Civil Procedure. I think the witness was not disqualified. In order that a client or person seeking professional advice may be encouraged to freely give a truthful narration of the facts upon which the advice is based, the attorney is not permitted to disclose the communication made to him. Generally the participants in an interview are only the lawyer and the client and it is given in secret. If, however, others who are competent to testify are present at the interview, the reason for the rule is gone and the ban is removed. If two parties are before an attorney together seeking advice against a common enemy and later a controversy arises between these two parties and the communications to the attorney or made in his presence may be important, either can state what occurred and consequently the mouth of the lawyer is not closed. The plaintiff and the defendant were consulting with Nelson to enable him to advise and act professionally in the litigation commenced by Isaac De Puy. In the conversation with Nelson, the question of money to defray the expenses of the contest arose. It was an independent or collateral subject in which the plaintiff and the defendant had a common interest and it did not pertain to the performance of the duties of Nelson in behalf of his clients in the litigation then pending. The plaintiff agreed to loan the money the defendant needed. In a controversy between these two over the agreement either one could testify to the arrangement made in the presence of the lawyer who was acting on their behalf, and hence he is not disqualified. (Hurlburt v. Hurlburt, 128 N. Y. 420; Whiting v. Barney, 30 id. 330; Doheny v. Lacy, 168 id. 213, 223, 224; Hebbard v. Haughian, 70 id. 54, 62.) In the first case cited, the action was brought by the administrator of Charles F. Hurlburt, deceased, against the administrators of his son, Theron, for money claimed to have been loaned by the father to the son. These two consulted a lawyer in regard to adjusting the future interest of another son in the estate of the father. During the conversation certain statements and admissions were made by the father or assented to by him in the presence of the attorney. The lawyer was permitted to testify to these admissions and statements, and the Court of App. Div.] Fourth Department, July, 1911. Appeals held there was no violation of section 835 of the Code of Civil Procedure in receiving the evidence. The court said (at p. 424): "It has frequently been said that the object of the rule embodied in the section is to enable and encourage persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that such facts will be made public to their disgrace or detriment by their attorney. Such a case as this is plainly not within the rule. Here Theron and his father were both interested in the advice which they sought, and they were both present at the same time and engaged in the same conversation. Each heard what the other said, so that the disclosures made were not, as between them, confidential; and there can be no reason for treating such disclosures as privileged. It has frequently been held that the privilege secured by this rule of law does not apply to a case where two or more persons consult an attorney for their mutual benefit, that it cannot be invoked in any litigation which may thereafter arise between such persons, but can be in a litigation between them and strangers." Nelson prepared a mortgage for the defendant to execute in order to secure the plaintiff for the advances which it was expected he would make in her behalf, and the giving of this security was contemplated by their agreement. The attorney testified that in a separate conversation with the defendant he advised her not to execute the mortgage at that time, as by doing so she would be amenable to punishment for contempt of court. This conversation was also competent, as it was in furtherance and fulfillment of the agreement made between the parties to the action; and in any event it was not of especial importance in view of what had been said and arranged at the prior meeting in the lawyer's presence. On cross-examination the defendant's counsel endeavored to prove by the plaintiff that the defendant had been his mistress almost constantly since his acquaintance with her, and the evidence was excluded. The relations of the parties appear sufficiently by the record, so that there was no necessity of designating them by name, and the referee has found distinctly in regard to them. The plaintiff testified to the sums of money he advanced for Fourth Department, July, 1911. [Vol. 146. the defendant. Long before the trial he had in a bill of particulars advised the defendant of each item of his claim against her and to whom the advancement was made, and she did not contradict any of the charges. We must assume, therefore, that she was satisfied that he paid out the various sums claimed by him. The judgment should be affirmed. All concurred. Judgment affirmed, with costs. JAMES E. CALKINS, Appellant, v. ROSE STEDMAN and Others, Respondents. Fourth Department, July 11, 1911. Debtor and creditor — fraudulent conveyances — evidence - facts showing fraud-demand on executor of debtor to sue not prerequisite. The plaintiff in a suit to set aside conveyances of real and personal property upon the ground that they were made to defraud creditors is entitled to show facts and circumstances tending to prove as alleged in the complaint that the conveyances were made without consideration by the grantor while largely indebted to others, and that he died insolvent. Facts and circumstances leading to the conclusion of fraud may be proved without specifically alleging them in the complaint. The creditor of a decedent may sue on his own behalf and for the benefit of all other creditors of the decedent to set aside conveyances formerly made by the decedent for the purpose of defrauding creditors without a prior demand on the debtor's executor to bring the suit. APPEAL by the plaintiff, James E. Calkins, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 6th day of June, 1910, upon the decision of the court rendered after a trial at the Wyoming Special Term. O. H. & W. E. Hopkins and Clarence H. Beane, for the appellant. William G. Kilhoffer, for the respondents. App. Div.] Fourth Department, July, 1911. The judgment should be reversed and a new trial granted, with costs to appellant to abide event. The action was brought to set aside a conveyance of real and personal property by a husband to his wife as fraudulent and void as to the creditors of the husband, and to have real and chattel mortgages given by the wife upon such property declared fraudulent and void also. The court denied the relief asked for and ordered judgment against the plaintiff for costs. The conveyance of the real property was made July 13, 1907, and of the personal property April 17, 1908. The husband died May 25, 1908. The mortgages were made by the wife at various times in 1908, after the death of her husband. The plaintiff attacked the consideration for the conveyances by the husband to the wife, and fraud was based mainly upon the want of consideration and the fact that the husband was indebted to other parties, including plaintiff, and after such conveyances he had not sufficient property left to pay such indebtedness. The plaintiff relied upon the defendants for proof to sustain his action. His complaint was in the usual form, charging the conveyance of all the husband's property without consideration, while he was largely indebted to others, and he then died insolvent, and that the conveyances were made with intent to hinder and delay and defraud his creditors. Among other things, plaintiff sought to make proof of facts and circumstances tending to establish these things, but the court excluded much of the evidence offered, apparently upon the ground that the details sought to be established were not alleged in the complaint. This evidence was improperly excluded, and if it had been admitted it would seem that the fraud might have been established and the court would not have found that no fraud was proven. That the facts and circumstances leading to the conclusion of fraud could be proved without alleging them in the complaint was held in Kain v. Larkin (141 N. Y. 144, 151, 152) which was an action wherein the plaintiff sought to have adjudged and declared fraudulent and void as to her intestate a transfer of certain real estate made by one of the defendants to his daughter. The court, among other things, said: "The complaint that after the cause of * * * avers * * Fourth Department, July, 1911. * [Vol. 146. action accrued the defendant transferred his property which would be subject to the lien of an execution;" that this transfer was made "without consideration and with the intent to hinder, delay and defraud the plaintiff of her claim. * * The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff's claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading." (See, also, Vollkommer v. Cody, 177 N. Y. 124, 130.) But the defendants claim this action could not be maintained because plaintiff had failed to demand that the executor of the deceased debtor bring the action before plaintiff brought it himself. This question was raised on the motion for a nonsuit, but the case was not disposed of upon this ground. The court did not pass upon the question at all, but decided the case purely upon the facts, holding that fraud was not proven. The right to bring such an action as this by one creditor for the benefit of himself and all other creditors of a deceased person was expressly given by statute (See Laws of 1858, chap 314, as amd. by Laws of 1889, chap. 487, and Laws of 1894, chap. 740; Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], $ 7; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], §232; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 19; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 268), and no provision or condition was contained in either statute requiring the creditor suing, first to request the personal repre |