Frothingham v. Hodenpyl

Headnote

A general creditor cannot maintain an action to have judgments obtained against Ms debtor by other creditors set aside on the ground that they were improperly or fraudulently entered; until his claim has been established by a judgment and execution returned unsatisfied he cannot come into a court of equity for assistance to prevent or redress an alleged fraud.

Appeal from judgment of the General Term of the Supreme Oourt in the first judicial department, entered upon an order made October 14, 1891, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.

The following is the opinion in full:

“ This action differs only from that of the Columbus 'Watch Co. v. Sodempyle, decided at this term,^[1] in the one respect that here the plaintiffs’ firm are general creditors of the firm of Stern & Stern; who demanded similar equitable relief against certain judgment creditors of that firm.

“ It is sufficient to say that, as creditors at large, they have no right to maintain any such action, or to question their debtors’ acts. Such right is gained when the claim of the creditor is established by a judgment and execution returned unsatisfied. Until then, he cannot come into a court of equity for assistance to prevent, or redress fraud alleged. ( Wiggins v. Armstrong, 2 Johns. Ch. 144 ; Dunlevy v. Tallmadge, 32 N. Y. 457 .)

“ The General Term have correctly decided the case below and I see no ground upon which this appeal is maintainable.

“ The judgment appealed from should be affirmed, with costs.”