Per Curiam.
While we hold that the rule stated in Smith v. Reid (134 N. Y. 568) that a voluntary conveyance by one indebted at the time is presumptively fraudulent as against existing creditors is the law of this state, rather than the rule laid down in Kain v. Larkin (131 N. Y. 300), still we are of opinion that the evidence in the case presented questions of fact, the determination of which by the trial court it was within the power of the Appellate Division to review and reverse. Therefore, as the order of reversal recites that it was made on the facts as well as on the law the plaintiff’s appeal must fail, the order granting new trial must he affirmed and judgment absolute rendered against the appellant on the stipulation, without costs in any court.
Culler, Ch. J., Haight, Varr, Werner, Willard Bartlett and Chase, JJ., concur; Gray, J., absent.
Order affirmed, etc.