Gilbert v. Mechanics & Metals National Bank

Headnote

Gilbert v. Mechanics & Metals Nat. Bank of N. Y., 176 App. Div. 915 , affirmed.

Appeal from a judgment entered March 5, 1917, upon.an order of the Appellate Division of the Supreme Court in the first judicial department, wMch affirmed an order of Special Term granting a motion by defendant for judgment in its favor Upon the pleadings. This action was instituted by the plaintiff as general assignee for the benefit of the creditors of the firm of A. Bolognesi & Co., to recover of the defendant the sum of $33,707.10, representing a balance in the account of A. Bolognesi & Co. with the defendant on the date of the making of the general assignment to the plaintiff. The defendant interposed an answer containing among others a defense the substance of which is that on March 12, 1914 (following the assignment to the plaintiff), a petition in bankruptcy was filed against the firm of A. Bolognesi & Co. in the United States District Court, Southern District of New York, and that thereafter the said firm was adjudicated a bankrupt and that still later, Francis Gilbert (the plaintiff), Philip Termini and Leo Oppenheimer were duly elected trustees in bankruptcy of said A. Bolognesi & Co., and that by an order made on November 5, 1915, the assignee was directed to turn over to the trastees all the assets remaining in his hands, after making certain payments therein set forth, and that, therefore, the trustees in bankruptcy are now the sole owners and holders of the alleged cause of action set forth in the complaint and the real parties in interest, and the only persons authorized to prosecute this action. The plaintiff served a reply to this alleged defense,

admitting the filing of the petition in bankruptcy, the election of the three trustees and the making of the order of November 5, 1915, but denying that the trustees are the only persons authorized to prosecute this action.