Frothingham v. Hodenpyl — 48 N.Y. St. Rep. 449

Majority

p. 449

Thomas G. Frothingham et al., App’lts, v. A. J. G. Hodenpyl et al., Resp’ts.^[1]

(Court of Appeals,

Filed October 11, 1892.)

Headnote

Creditor's action—Parties.

A mere creditor at large lias no right to maintain an action to attack the validity of judgments entered against his debtor on an offer, until his claim is established by a judgment and execution returned unsatisfied.

Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing complaint

Franhlin Bien, for app’lts; Hays & Greenbaum, for resp’ts.

This action differs only from that of the Columbus Watch Co. v. Hodenpyl, decided at this term, 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.

All concur.