Supreme Court, April, 1921. [Vol. 115. under seal. This presumes a consideration. Code Civ. Pro. § 840. Had the assignment to the plaintiff been made after the option had been accepted, he would be in the same position as the assignee of the ordinary contract of purchase, for the acceptance of the option creates the contract. But the option had not been accepted when the rights under it were secured by the plaintiff. He accepted the option and so he personally became obligated to the vendor. There is no lack of mutuality under these circumstances. The only contract for the sale of the property is the one arising out of the option given by defendants' intestate and the acceptance of that option by the plaintiff. Until such acceptance there was no contract of sale. When the plaintiff accepted the option he was then obligated to buy the property and the defendants could have required him to have specifically performed and to have completed his purchase. He necessarily has the same right. While no case in this state has been called to the court's attention directly on this point, there are numerous ones in other states upholding plaintiff's right to maintain this action. Winslow v. Dundom, 46 Mont. 71, 79-82; Simmons v. Zimmerman, 144 Cal. 256, 260; Kerr v. Day, 14 Penn. St. 112; Napier v. Darlington, 70 id. 64; Kreutzer v. Lynch, 122 Wis. 474, 478; House v. Jackson, 24 Ore. 89; Blakeman v. Miller, 136 Cal. 138; Cameron v. Shumway, 149 Mich. 634, 640; Simms v. Lide, 94 Ga. 553; Perry v. Paschal, 103 id. 134; Pearson v. Millard, 150 N. C. 303, 309–311. See, also, note to 43 L. R. A. (N. S.) 115-119. Judgment for plaintiff overruling demurrer. Judgment accordingly. Misc.] Supreme Court, April, 1921. MAX SCHWARTZ, Plaintiff, v. MORRIS RAPPAPORT and Others, HAIM S. GOLDBERG, Impleaded, Defendants. (Supreme Court, Kings Special Term (Trials), April, 1921.) Action to reform mortgage-priority of mechanics' liens recording. The right to have a mortgage containing no description of the real property intended to be covered thereby, reformed in that particular, is subject to the rights under a mechanic's lien filed against the property after the mortgage was recorded. ACTION to reform a mortgage. Ginzburg & Picker, for plaintiff. Joseph W. Gottlieb, for defendant Goldberg. CROPSEY, J. The question is one of priority between plaintiff's mortgage and defendant's mechanic's lien. The mortgage was made and recorded before the lien was filed, but the mortgage did not describe the property intended to be covered by it, which was the property affected by the defendant's lien. This action is to reform the mortgage by making it cover the property in question, as was originally intended, and then to foreclose it. In the absence of a statutory provision, the holder of a mechanic's lien has no greater rights than a judgment creditor and his lien is subject to the rights of those holding deeds or mortgages although unrecorded when the mechanic's lien was filed. Payne v. Wilson, 74 N. Y. 348, 355, et seq. But the Lien Law, section 13, provides: "A lien for materials furnished Supreme Court, April, 1921. * * [Vol. 115. or labor performed in the improvement of real property shall have priority over a conveyance, judgment or other claim against such property not recorded, docketed, or filed at the time of the filing of the notice. of such lien, except as hereinafter * provided; ." The plaintiff's mortgage was not recorded, that is, it was not a valid lien against the property covered by the mechanic's lien at the time the latter was filed. Even if the defendant had known of the existence of plaintiff's mortgage, the former's lien would have priority. Plaintiff's mortgage could come ahead of the defendant's lien only if it had been properly recorded against the property affected before the lien was filed. Lemmer v. Morison, 89 Hun, 277; Reedy Elevator Co. v. Monok Co., 171 App. Div. 653. Plaintiff contends that the case of Payne v. Wilson, supra, is authority for his contention that his mortgage has priority, and he asserts that case was decided on the statute of 1875, chapter 279, which contains a provision similar to that now in section 13 of the Lien Law. He also suggests that chapter 500, of the Laws of 1863, was involved in that case. All of these claims and suggestions, however, are unfounded. The Payne case arose on a lien filed in 1872, before the enactment of the Laws of 1875, and chapter 500 of the Laws of 1863 applied only to the then city of New York, and in the Payne case the lien was filed in the county of Kings, which was then not a part of that city. The statute which then applied to mechanics' liens filed in the county of Kings was chapter 478 of the Laws of 1862, but that contained no provision similar to that of the present statute and so the Payne case is authority only for the proposition that in the absence of a statute a mechanic's lien does not have priority over an unrecorded deed or mortgage. Misc.] Supreme Court, April, 1921. The plaintiff is entitled to reform his mortgage and to foreclose it, but his rights are subject to those of the defendant Goldberg under his mechanic's lien. The defendant Goldberg is entitled to costs. Ordered accordingly. MAX FEUER, Plaintiff, v. LEOPOLD SCHALLER et al., Defendants. (Supreme Court, Kings Special Term for Trials, April, 1921.) Fraudulent conveyances debtor and creditor - judgments — bona fide purchaser for value evidence Real Property Law, § 266-Code Civ. Pro. § 1251. Under section 263 of the Real Property Law a conveyance of real property made by a debtor in fraud of creditors prior to the docket of a judgment against him is void, and the lien of the judgment, by virtue of section 1251 of the Code of Civil Procedure, attaches notwithstanding such conveyance. Where, however, it appears that before plaintiff's judgment had been docketed the fraudulent grantee of the judgment debtor, a brother-in-law, conveyed the property to one who it was conceded paid full value for it, and in an attack upon the last conveyance on the ground that the grantee, who had made payments on account of the purchase price before he had any notice which could possibly be said to charge him with bad faith, and for which in any event he would have a lien on the property, did not take the conveyance in good faith, it appears that the judgment debtor, representing to said grantee that he owned the property, entered into a contract to convey, and, upon a search of the title, the prior conveyance was disclosed, the judgment debtor said that the property was held for him by the grantee therein, who signed the deed to the last grantee, who paid the full consideration to the judgment debtor, the proof is insufficient to establish that the last grantee was not a bona fide purchaser in good faith, and he comes within section 266 of the Real Property Law and the conveyance to him is good. ACTION by judgment creditor to set aside convey ances. CROPSEY, J. The conveyance by the judgmentdebtor, Leopold Schaller, to his wife was in fraud of his creditors. So it can also be found that the conveyance from Schaller's wife to Abramowitz, a brother-in-law, was fraudulent. If there had been no other conveyance the plaintiff could succeed, for while section 1251 of the Code of Civil Procedure provides that a judgment is a lien on real property "which the judgment debtor has " at the time it is docketed, a conveyance made prior to its docket in fraud of the debtor's creditors is void under section 263 of the Real Property Law and hence the lien of the judgment would attach notwithstanding such conveyance. White's Bank of Buffalo v. Farthing, 101 N. Y. 344; Smith v. Reid, 134 id. 568, 577; MacDonald v. MacDonald, 42 N. Y. St. Repr. 480. But before plaintiff's judgment was docketed Abramowitz had conveyed the property to Newman, who, it is conceded, paid full value for it. Newman's conveyance is attacked on the ground that he did not take it in good faith. It is conceded that Newman paid moneys on account of the purchase before he had any notice which could possibly be said to charge him with bad faith and so in any event he would have a lien upon the property for the amount so paid. Elterman v. Hyman, 192 N. Y. 113. The facts estab |