Louis v. Belgard — 43 N.Y. St. Rep. 766

Majority

p. 766

Samuel Louis et al., App’lts, v. Julia Belgard et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

1. Creditor’s action—Pleading.

An action by a creditor at large of a deceased insolvent debtor to set aside fraudulent transfers of property by the deceased can only be maintained for the benefit of himself and other creditors, and the fact that it is so prosecuted must appear on the face of the complaint. It is not sufficient that such statement appear in the title of the action.

3. Same.

A complaint in such an action which alleges that plaintiff has a claim for goods sold and delivered, without any allegation of a sale of goods to deceased or their value or agreed price, states only a conclusion of law and is insufficient.

Appeal from order and interlocutory judgment sustaining demurrer to complaint.

Henry L. London, for app’lts; Eugene Fishel, for resp’ts.

plaintiffs, claiming to be a creditor of ■one Simon Belgard, deceased, who was insolvent, bring this action alleging that they had a claim against deceased in the amount of $375.25 which arose on account of goods, wares and merchan-, disc sold and delivered by the plaintiffs to said Simon Belgard be-, tween certain dates; that Belgard died, and before his death

p. 767

fraudulently transferred his stock in trade, and the proceeds of. such transfer were received by the defendants herein, Belgard,, Eugene Fishel and Reid, who' deposited the same with the defendants, The Farmers’ Loan & Trust Go. and Leopold Fishel that the defendants Fishel, Reid or Belgard were not creditors of the deceased; and that they still held possession of the proceeds, of said transfer.

Judgment is demanded that the defendants Eugene Fishel, Reid’ and Belgard account for the said sum, etc.

A demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was sustained and from the judgment thereupon entered this appeal is taken.

An action by a creditor at large of a deceased insolvent debtor to set aside fraudulent transfers of property by the deceased can only be maintained by such creditor for the benefit of himself and other creditors interested in the estate or property of such deceased debtor, and therefore unless it appears upon the face of the complaint that the action is being so prosecuted no cause of action is set up. The complaint in the case at bar contains no-allegation or statement that it is. so brought It is true that in the title of the action these words appear; but there is nowhere any statement that the action is so brought; and it seems to. us that this must appear as distinctly as any of the other averments.

There is another ground upon which this demurrer should have-been sustained. The action can be brought by a creditor and his-claim or demand, if disputed, must be proved and established upon the trial of such action. The creditor must thus show that he-has a cause of action, and consequently must allege the facts in the same manner as if suing thereon, because his claim must be proved if disputed. The plaintiffs in their complaint nowhere-set out a good cause of action. It is manifestly insufficient in that only a conclusion is stated, that the creditor has a claim without alleging the facts upon which it arises. It is alleged that the-plaintiffs have a claim for goods sold and delivered without any allegation that the plaintiffs ever sold the deceased any goods ; neither is there any allegation as to value or agreed price; allegations absolutely insufficient to sustain a cause of action. The complaint is for this reason plainly insufficient.

The demurrer should.be sustained, with costs of appeal and the.disbursements, and with leave to the plaintiffs to amend on payment of costs and disbursements of this appeal and the costs and disbursements in the court below.

O’Brien and Lawrence, JJ., concur.