I dissent. The plaintiff procured judgment against one Parkin and. execution was returned unsatisfied. After the verdict was rendered in the case and before judgment was entered, Parkin transferred certain real property to the defendant. Later, in an action by this plaintiff against the defendant, judgment was .entered setting aside the transfer on the ground that it was made with the fraudulent intent and purpose of hindering* delaying, cheating and' defrauding this plaintiff in the collection of her money judgment. The complaint in that case did not demand and the judgment did not decree an accounting by the defendant for the rents and profits of the said premises while he was in possession thereof. Subsequently this action was commenced to compel .the defendant to account for snch rents and profits, and the plaintiff has had judgment decreeing that he account for the rents and profits from the time he entered into possession. The defendant appeals.
I cannot escape the conviction that the claim that the deed should be set aside so as to allow the judgment creditor to reach the land with an execution, and the claim for the moneys the fraudulent grantee received while in possession, treating him as trustee, are two distinct causes of action ; the first is to destroy the deed, the other to build up a trusteeship.
If I am right, one of the points the appellant makes should be considered. He maintains that lie may not be held to account for the rents and profits except from the time of the commencement of the action to set aside the transfer. Hillyer v. Le Roy (179 N. Y. 369) was an action to set aside a transfer as fraudulent, by a judgment creditor whose execution had been returned unsatisfied, and where transfer of certain property had been made, by some of the judgment debtors shortly prior to the judgment obtained by the plaintiffs; in that action the plaintiffs demanded that the transferee account to them for the use of the properties so fraudulently transferred, and the judgment compelled the defendants to account for rents from the time of the fraudulent transfers. In modifying the judgment, the Court of Appeals observe, per Gray, J.: “ I think the determination of the learned Appellate Division to have been correct; with this exception, however, that the judgment in the trial court appears to have included as within the lien of the original judgment *672the mesne rents and profits of the real estate from the time of the fraudulent transfers. That would be incorrect. The accountability for the rents and profits should be from the time of the commencement of the present action in equity to annul the transfers; at which time an equitable lien upon the fund was acquired. (Collumb v. Read, 24 N. Y. 505.) ” The respondent cites Loos v., Wilkinson (110 N. Y. 195) as an authority that the deed having been set aside as fraudulent and void the grantee had no title as against the plaintiff to the rents received by him and that he should account from the time he took possession. That case, however, was cited in the-briefs in the Hillyer case (p. 372), and the latter must be deemed to express the law upon the subject.
Inasmuch as neither the agreed statement of facts nor the findings of fact show what rents and profits the defendant received subsequent to the time of the commencement, of the plaintiff’s action to annul the fraudulent transfer, it is impossible from the record before us to determine the extent of the defendant’s accountability in money. My vote is to reverse the judgment and grant a new trial.
Judgment reversed, and judgment ordered for defendant, with costs.