Majority
p. 36VAN HOUTEN v. OLIVER. (Supreme Court, Appellate Term. December 7, 1904.) Argued before FREEDMAN, P. J., and BISCHOFE and GILDERSLEEVE, JJ. '
Headnote
L Bankruptcy—Suit by Trustee—Official Capacity—Proof.Where plaintiff sued as the trustee in bankruptcy of defendant’s creditor, and plaintiff’s appointment as trustee was denied, a judgment in his favor without proof of such appointment was erroneous.
Appeal from City Court of New York, Special Term.
Action by Erskine J. R. Van Houten, as trustee in bankruptcy of the Rochester Lamp Company, against Joseph H. Oliver. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals.
Reversed.
W. E. Morris, for appellant.
White & Case, for respondent.
The action was brought by the plaintiff-upon an allegation that he had been duly appointed trustee in bankruptcy of the Rochester Lamp Company, and other allegations to the effect that two monthly installments of rent had become due to him from the defendant by virtue of the terms of a lease from the Rochester Lamp Company to the defendant. Assuming that the complaint sufficiently alleged the due appointment of the plaintiff as trustee, yet, as the said allegation was denied by the answer, the plaintiff was bound to establish its truth by proof on the trial. No such proof having been adduced, the judgment cannot be sustained.
Judgment and order reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.