Ogdensburg Wholesale Mercantile Co. v. Curry

Lawrence, J.

The action was brought under section 44 of the Personal Property Law to have the proceeds of a sale held for the benefit of creditors upon the ground that no notice was given as provided for in such section.

As to subdivision 5 of the answer: The defendant claims that as the plaintiff was not a judgment creditor at the time of the sale in bulk, he could not take advantage of the failure to comply with section 44 of the Personal Property Law. This would not seem to be necessary under the statute. (Thorndike & Hix Lobster Co. v. Hall, 223 App. Div. 576.) To sustain the position taken by the answer would seem to destroy the very purpose of the statute.

As to subdivision 6 of the answer: The defendant claims that part of the purchase price received from the purchaser was paid to the plaintiff on his indebtedness and that the plaintiff had knowledge of the source of the payment made. The defendant further claims that the plaintiff is guilty of loches in asserting his claim. There would not seem to be any short Statute of Limitations fixed for asserting this claim and the fact that a payment on the indebtedness was made subsequent to the transfer would not seem to be an obstacle to maintaining this action.

As to subdivision 7 of the answer: It is claimed that the verification of the complaint is illegal but this claim was abandoned upon the argument of motion.

The motion to strike out subdivisions 5, 6 and 7 of the answer is granted, with ten dollars costs.