Moss v. Gilbert

Headnote

1. Place of trial; local action.] An action to set aside as fraudulent an assignment for benefit of creditors, which includes real estate of the assignor, is a local action within section 983 of the Code of Civil Procedure, and must be tried in the county where the real estate or some part thereof is situated.

2. The same; prayer of complaint.] So held, and the motion granted notwithstanding the complaint was amended after service of the motion papers so as to demand merely that the assignment be adjudged fraudulent and void as against the lien of plaintiffs’ attachment upon a stock of goods included in the assignment.

Motion by the defendants to change place of trial from New York county to Erie county.

This action, with two others, was brought by Joseph Moss and another against Frank T. Gilbert, as sheriff of Erie county, Moses Ruslander, and his assignee for benefit of creditors, and others, to set aside the assignment of Ruslander for benefit of creditors as fraudulent.

It appeared in support of the motion that the plaintiffs had attached a certain stock of goods belonging to Buslander at Buffalo, Erie county, which were claimed by the assignee, and that other executions issued upon judgments confessed by the assignor in favor of the others of the defendants had also been levied upon the goods. Within the time limited for the amendment of the complaint as of course, and after service of the notice of this motion to change the venue of the action, the plaintiffs amended the prayer of the complaint so as to demand that the assignment and the judgment be 66 declared fraudulent and void as against the lien of the attachment of these plaintiffs on the said stock of goods.” The plaintiffs made no other claim against any other property covered by the assignment.

The affidavits for the motion showed that the assignor owned real estate in Erie county, which was covered by the assignment, and that he owned no real estate anywhere else within this State.