(dissenting). I cannot agree that a cause of action at law exists in this State in favor of a judgment creditor, having no lien on specific property, against his judgment debtor and another for disposing or aiding in the disposition of the judgment debtor’s property so as to hinder and impede, and possibly defeat, collection of the judgment. There are two aspects of the cause of action before us, to wit, (1) the action by the judgment creditor against the defendant Adam Clayton Powell, Jr., the judgment debtor, and (2) the action by the judgment creditor against the codefendant wife, Yvette Powell. Of course, the statute (CPLR 5014) expressly forbids an action upon a money judgment by the judgment creditor against his judgment debtor, except for limited purposes not here pertinent. Thus, as the majority holds, the action is not specifically to collect the judgment, but it is for damages many times in excess of the amount of the judgment, to be measured, say the majority, by the loss or expense caused by the interference, and conceivably embracing the judgment itself, “ in which event satisfaction of the judgment so obtained would also operate to satisfy the original judgment. ’ ’
It is not too early in this discourse to point out practical difficulties in that ruling, and to ask what happens in the event of partial satisfaction of the new judgment, assuming (1) that the payment is less than the original judgment and that the new judgment includes the judgment creditor’s special losses and the expenses of securing it, (2) that the payment is in the *5same amount as the original judgment, but the new judgment includes the judgment creditor’s losses and expenses of obtaining it, or (3) that the payment is greatly in excess of the original judgment but not a complete satisfaction of the new judgment? Legislation or judicial decision could make provision for the measure of damages and the effect of payments (see General Obligations Law, § 15-103); but the present holding leaves much in doubt.*
The law of this State and many other States has long denied a right of action at law by a general creditor or a judgment creditor, having no lien on specific property, against his debtor or others for dispositions of the debtor’s property with intent to defraud creditors. (Adler v. Fenton, 24 How. [65 U. S.] 407 [1860]; Northville Dock Corp. v. Aller, 15 A D 2d 947, affd. 15 N Y 2d 498; Braem v. Merchants’ Nat. Bank, 127 N. Y. 508, affg. 53 Hun 638 opn. in 6 N. Y. S. 846; Kaspin v. Thaw, 262 App. Div. 861; Goldberg v. Korman, 257 App. Div. 990; Kimmelsman v. Bishop, 251 App. Div. 724; Hurwitz v. Hurwitz, 10 Misc. 353; Sussman v. Sussman, 115 N. Y. S. 2d 252; Bradford v. Sonet, 64 N. Y. S. 2d 876; Bartol v. Bennett, 56 N. Y. S. 2d 314; Perkins v. Becker’s Conservatories, 318 Mass. 407, 414; Moody v. Burton, 27 Me. 427 [1847]; Lamb v. Stone, 11 Pick. [28 Mass.] 527 [1831]; and, see, Findlay v. McAllister, 113 U. S. 104, 114; 24 N. Y. Jur., Fraudulent Conveyances, § 128; 8 N. Y. Jur., Conspiracy, § 14; 15 C. J. S., Conspiracy, § 9, subd. b; Liability for Influencing Preference, Ann. 112 A. L. R. 1250.) These decisions are founded upon reason and policy, particularly well set forth in Adler v. Fenton (supra), Hurwitz v. Hurwitz (supra) and Moody v. Burton (supra). In Moody v. Burton (supra, pp. 432-435) the court reasoned in part as follows:
“ Stripped of the allegations describing the manner, in which the alleged fraud was perpetrated, the declaration presents the common case of a fraudulent conveyance of property, made for the purpose and with the intent to defraud creditors.
“ Creditors may consider such conveyances to be unlawful and void, and may cause the property to be applied to the payment of their debts by the use of any of the different legal and *6equitable processes applicable to their case and afforded by the law for that purpose. Some one of those processes has been found to be well suited to such a purpose, and by a proper selection and use of it, a creditor upon satisfactory proof may obtain payment from property so conveyed, or from its proceeds in the hands of a fraudulent holder.
“ Omitting the selection of any of the long established remedies and the usual course of procedure, it is now proposed by an action on the case to seek, not the property fraudulently convoyed or its proceeds, but a judgment against those who wore parties to the fraud, for the amount of damages, which the plaintiff can prove, that he has suffered by reason of such fraudulent conveyance. If such an action can be maintained in this, it may in every other case, where a fraudulent conveyance has been made of real or personal property with an intention to defraud creditors. If such an action upon such proof can be maintained by any one, it may be also by each creditor. There is nothing to give one a right superior to that of another. * * * The damages in such actions are not measured by proof or consideration of the benefit, which the wrongdoer may have derived from his wrongful or unlawful act. They are limited and measured only by the injury, which his conduct has occasioned. If therefore the principles which regulate this form of action are to be regarded and preserved, all creditors, who have been injured by a fraudulent conveyance of their debtor’s property, must have an equal right to recover damages to the extent, to which each has thereby been a loser. And the effect upon a party receiving such a conveyance must be to subject him to damages in no degree regulated by the amount of property received, and limited only by the injury occasioned, it may be, to very numerous creditors similarly situated and injured. To place him in such a position the whole law regulating the rights and liabilities arising out of proof, that one has received a conveyance of a debtor’s property with an intention to defraud his creditors, must be changed. That law, as it has been administered in civil actions does not punish a person for becoming a party to such a fraud. Does not punish the debtor and vendor, who has thus conveyed his property. It only deprives the purchaser of all benefit to be derived from it, by declaring his title thus obtained to be void, when it may injuriously affect the rights of creditors. It leaves the moral turpitude and other injurious effect upon creditors and upon society to be punished, as the sovereign power may provide. To allow each creditor to maintain an action on the case against a fraudulent purchaser to recover damages, supposing them to be capable of legal *7estimation, would be to make use of a civil action for the recovery of sums, in the nature of a penalty, to the full amount of all, which could be recovered. * * * A debt due from one person cannot be satisfied by the recovery of damages from another person, unconnected with and a stranger to it, without some statute provision. The creditor would recover damages in satisfaction for an injury suffered, not on account of a debt due and in satisfaction of it. ’ ’
In addition to the above considerations the courts have found that there can be no satisfactory, workable measure of damages in an action of this nature. Until the creditor obtains a lien upon specific property of his debtor, he can have no more claim to an asset of the debtor than any other creditor. The asset may be lost to the debtor and the reach of his creditors in innumerable ways. What is the measure of plaintiff’s damages resulting from the defendants’ conveyance in the present case1? She has lost only one chance to secure payment. She may still be able to reach the conveyed asset, if indeed it was fraudulently conveyed. Thus, the plaintiff’s damage would be too uncertain and speculative to be the subject of computation and award. In any event the creation of such a cause of action should bo done, if at all, by the Legislature. In Adler v. Fenton (65 U. S. 407, 413, supra) the court said: “In the absence of special legislation, we may safely affirm, that a general creditor cannot bring an action on the case against his debtor, or against those combining and colluding with him to make dispositions of his property, although the object of those dispositions be to hinder, delay and defraud creditors. ” (And, see, Moody v. Burton, quoted supra.)
The majority place much reliance upon Quinby v. Strauss (90 N. Y. 664). That case was carefully considered in Braem v. Merchants’ Nat. Bank (53 Hun 638 opn. in 6 N. Y. S. 846, 849-850, affd. 127 N. Y. 508, supra) and in Hurwitz v. Hurwitz (10 Misc. 353, 358-359, supra) and in the latter opinion it was pointed out that the judgment creditor in the Quinby case had obtained a lien before the defendants interfered with the property. Herein, in my judgment, lies the crux of the present discussion and the point which leads the majority to an erroneous conclusion. I think it .clear that an action at law, as well as in equity, will lie in behalf of a judgment creditor against his judgment debtor and others for fraudulently disposing of an asset upon which the judgment had become a lien, or by any lienor against those who damage his security (Quinby v. Strauss, supra; Van Pelt v. McGraw, 4 N. Y. 110; Yates v. Joyce, 11 Johns. Ch. 136; Findlay v. McAllister, 113 U. S. 104, 111; Adler v. Fenton, supra, pp. 410-412; Moody v. Burton, *827 Me. 427, 435-436, supra). The same principle has been applied with respect to an owner whose goods were fraudulently obtained by others (Moore v. Tracy, 7 Wend. 229). But until the creditor has obtained a lien, no legal right that he possesses is violated by dispositions of the debtor’s property; and no damage is provable. (See Moody v. Burton, supra, pp. 434-435.)
It is to be noted that the case of Mott v. Danforth (47 Pa. 304 [1837]) relied upon by the majority, was one of three cases of which the United States Supreme Court said in Findlay v. McAllister (supra, p. 114): “ The three cases last cited extend the rule further than the exigency of the present case requires, and further than this court has been disposed to go.” In Collins v. Cronin (117 Pa. 35) relied upon by the majority, the plaintiff lost, but that case did recognize the principle of Mott v. Danforth (supra). In the case of Penrod v. Mitchell (24 Pa. 522 [1822]) cited by the majority, the plaintiff was a judgment creditor, and the court held that the measure of damages should have been the value of the property fraudulently conveyed. In Hurwitz v. Hurwitz (10 Misc. 353, 358, supra) the court suggests that the reason for the Pennsylvania rule was ‘ ‘ the defect in equity jurisdiction peculiar to that state, [wherein] a remedy by common-law action may be thought indispensable. Still we cannot assent to the doctrine of that case.”
In Ward v. Petrie (157 N. Y. 301, 310) the court discussed the question before us, citing among other eases Braem v. Merchants’ Nat. Bank (supra) and stated that it need not decide the question in that case. The Braem case was relied upon in the opinion of the Appellate Division in Northville Dock Corp. v. Aller (15 A D 2d 947, supra); and undoubtedly the Court of Appeals had in mind the Quinby, Braem and Ward cases when it unanimously affirmed the Northville case in 15 N Y 2d 498.
It should further be pointed out that the cause of action under consideration cannot be sustained on the theory of ‘ ‘ prima facie tort. ” Such a cause of action may not embrace a traditional tort, as fraud, which is pleaded in the cause at bar; and, furthermore, damages in such an action must be pleaded especially (Brandt v. Winchell, 286 App. Div. 249, affd. 3 N Y 2d 628; and, see, Moody v. Burton, 27 Me. 427, 435-436). Moreover, such cause of action may only be invoked when the defendant acts solely with intent to harm the plaintiff, without justification or excuse, as distinguished from an intention merely to commit the act. (Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Adler v. Fenton, supra, p. 410.) The plaintiff has not alleged such a cause of action.
*9The plaintiff contends that in any event she is entitled to punitive damages in this cause of action. The right to punitive damages is basically dependent upon the existence of a cause of action for compensatory damages, even though the latter may be but nominal in amount (Kiff v. Youmans, 86 N. Y. 324, 331). Stated in another way, the claim for punitive damages does not constitute an independent cause of action. (See Knibbs v. Wagner, 14 A D 2d 987; Gill v. Montgomery Ward & Co., 284 App. Div. 36, 41; Dworski v. Empire Discount Corp., 46 Misc 2d 844; 1 Seelman, Libel and Slander [Rev. ed.], par. 137.) Since a valid cause of action fox compensatory damages has not been alleged herein, the cause of action will not support a claim for punitive damages.
It should be observed, also, that most of the New York cases which have granted monetary damages for fraudulent conveyances have been equitable actions to set aside conveyances; and where the asset cannot be reconveyed, the courts have frequently awarded monetary damages in its stead, but in an amount not to exceed the value of the property fraudulently conveyed (see Lowendahl v. Van Bokkelen, Inc., 260 N. Y. 557; American Sur. Co. v. Conner, 251 N. Y. 1, 7; Hamilton Nat. Bank v. Halsted, 134 N. Y. 520; Valentine v. Richardt, 126 N. Y. 272; Quinby v. Strauss, 90 N. Y. 664; Post v. Browne, 279 App. Div. 922, affd. 304 N. Y. 610; Shugerman v. Sohn, 255 App. Div. 866); but, as noted above, a creditor with a lien may maintain an action at law for interference with his specific security. Whether in an appropriate ease punitive damages may also be awar'ded in such an action in the light of recent authorities (I. H. P. Corp. v. 210 Cent. Park South Corp., 16 A D 2d 461, affd. 12 N Y 2d 329; Walker v. Sheldon, 10 N Y 2d 401; cf. Moody v. Burton, 27 Me. 427, 433-434, supra, and Penrod v. Mitchell, 24 Pa. 522, 525, supra), need not be considered at this time.
The order of the court below should be modified to the extent of striking the first cause of action, and, as modified, affirmed, with costs and disbursements to the appellants.
McNally, J. P., and Eager, J., concur with Steuer, J.; Witmer, J., dissents in opinion in which Stevens, J., concurs.Order entered on September 29, 1965, denying defendants’ motion to dismiss the complaint affirmed, with $30 costs and disbursements to abide the event.
Note: For considerations as to the measure of damages under the majority holding see Mott v. Danforth (47 Pa. 304, 308 [1837]) and Penrod v. Mitchell (24 Pa. 522, 525 [1822]). In the Penrod case (p. 525) the court said: “If the value of the property assigned were not the standard, there would be no reason why. damages beyond the amount of the judgment might not be given; which, I apprehend, could not be done, even if the value were of greater amount than the judgment.” (And, see, Moody v. Burton, 27 Me. 427, 434-435 [1847].)