Frank v. Musliner — 60 N.Y.S. 332

Majority

p. 332

(29 Misc. Rep. 237.)

FRANK v. MUSLINER et al.

(Supreme Court, Special Term, New York County.

October, 1899.)

Headnote

Costs—Trustee in Bankruptcy—Accrual op Cause op Action.

Under Code Civ. Proc. § 32G8, which provides that a defendant may require security for costs where a trustee in bankruptcy is the plaintiff in an action brought on a cause of action which accrued before the appointment or the adjudication in bankruptcy, a defendant is not entitled, as a matter of right, to security in an action by a trustee to set aside a transfer made within four months prior to the adjudication, brought under the statute which authorizes action to set aside a preferential transfer made within four months of adjudication, as the cause of action did not accrue until the adjudication of bankruptcy.

Action by Mannie Frank, as trustee in bankruptcy, against Isaac Musliner and others. Motion to require plaintiff to give security for costs.

Motion denied.

p. 333

Myers, Goldsmith & Bronner (Emanuel J. Myers, of counsel), for the motion.

Samuel Fleishman, opposed.

Security is not required, as of right, under the fourth subdivision of section 3268 of the Code of Civil Procedure, where a trustee in bankruptcy is the plaintiff, unless the cause of action is one “arising before * * * the appointment of the trustee or the adjudication in bankruptcy.” Here the cause of action is founded upon the fact of a transfer by the bankrupts within four months of the adjudication in bankruptcy, and the right of the trustee to maintain the action depends upon the adjudication having fallen within that period. Clearly, then, the cause of action became complete only with the adjudication, and was to be distinguished from the class of accrued demands to which the statute has reference. As matter of right, therefore, the defendants’ motion is not necessarily to be entertained, and, so far as my discretion is appealed to, I deny the application; it being apparent, upon the defendants’ admissions, that the plaintiff must succeed in the action to some extent.

Motion denied. No costs.