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Frothingham v. Hodenpyl

4 Silv. Ct. App. 623 Court Court of Appeals, Decision date 1892-10-11 English

Delivered by Gray, J.

Contents

Majority

p. 623
Thomas G. Frothingham et al., Appellants, v. Anthony J. G. Hodenpyl et al., Respondents.
Court of Appeals,
October 11, 1892.

Headnote

Creditor’s action. Parties.—A creditor at large cannot maintain an action against his debtor to set aside an alleged fraudulent judgment entered in favor of another creditor. Such right is acquired only after his claim is established by a judgment and execution returned unsatisfied.
Appeal from judgment of the supreme court, general term,
p. 624
first department, affirming judgment of special term dismissing complaint.
Franklin Bien, for appellants.
Hays and Greenbaum, for respondents.

—This action differs only from that of the Columbus Watch Co. v. Hodenpyl, decided at this term, in the one respect that here the plaintiff’s 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.

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