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Richter v. Nimmo

63 A.D. 422 Court N.Y. App. Div. English

Delivered by Jenks, J.:

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p. 422
Oscar Richter, as Trustee in Bankruptcy of David M. Torrey, Bankrupt, Appellant, v. Andrew Nimmo, Respondent.

Headnote

Bankruptcy—pi’efer'ence to a creditor — what is an allegation that it was paid from the funds of the bankrupt.
A complaint, in an action brought by a trustee of a bankrupt, which alleges that two months before the adjudication in bankruptcy was made the defendant sued the bankrupt and attached his property, knowing at the time that the. bankrupt was insolvent, and “that thereafter one hundred dollars was paid to said defendant on account of said claim ” raises a fair and reasonable inference that the payment was made from the funds of the bankrupt and is not demurrable.
Appeal by the plaintiff, Oscar Richter, as trustee in bankruptcy of David M. Torrey, bankrupt, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining a demurrer to the complaint.
Henry Oooper, for the appellant. ■
Louis F. Doyle, for the respondent.

Plaintiff sues to recover $100. He complains that Torrey was adjudicated a bankrupt in December, 1898; that defendant sued Torrey in October, 1898, to recover $300 and attached property of Torrey; that at the time Torrey was insolvent as defendant well knew; and, “Seventh. That thereafter one hundred dollars' was paid to said defendant on account of said claim.” The defendant contends that this allegation is insufficient, in that it does not allege that the $100 was paid by Torrey out of his estate, and, therefore, for aught pleaded,- it may have been paid by some third person and not out of the funds of Torrey. His demurrer, taken upon this ground, was sustained and the plaintiff appeals.

The cause of action depends upon the fact that Torrey, in effect, gave a preference to the defendant, and, therefore, requires allege tion and proof that the payment was made out of Torrey’s estate, I think that we may properly consider that this action, founded

p. 423
upon a statute, must be directed against a virtual preference, in that it does not lie, unless the money sought to be recovered thereby had been received in depletion of the bankrupt’s estate. Imperfect pleading is not fatal. (Kain v. Larkin, 141 N. Y. 144 .) I am of opinion that it may fairly and reasonably be inferred from the standing allegation that the charge is that the payment was made from Torrey’s funds, and I think that evidence of such fact is admissible under the allegation.

The pleading is not to be commended, but I think that it is ■sufficient under the authorities to put the defendant to his answer. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451 ; Sage v. Culver, 147 id. 241; Kain v. Larkin, supra.) The facts, if stated by implication, are none the less traversable. (Marie v. Garrison, 83 N. Y. 14 ; Sage v. Culver, supra.)

The interlocutory judgment is reversed, with costs.

All concurred.

Interlocutory judgment reversed, with costs.

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