160 N.Y.S. 710 | N.Y. Sup. Ct. | 1916
The trustees in bankruptcy did not take title through the plaintiff as assignee for the benefit of creditors of A. Bolognesi & Co., but took by a superior title (Black Law & Prac. of Bankruptcy, § 440; Whittlesey v. Becker & Co., 142 App. Div. 313); hence section 756 of the Code of Civil Procedure has no application and the action cannot be maintained either by the plaintiff, who no longer has title, or by the trustees in his name, for no title has been transferred from him to them. I cannot see that section 67 of the Bankruptcy Act has any application to the case. The plaintiff did not procure any lien upon the fund in question either by the assignment or by the institution of this aetipn. If he had procured any lien perhaps the trustees could have been subrogated to it, but it would not follow that they were authorized to continue the present action for the purpose of enforcing their rights. Counsel for plaintiff frankly states that the present action is sought to be continued by the trustees of the bankrupt estate in the name of the plaintiff on the theory that the defendant would then have no right to offset a debt due it from the plaintiff’s assignors and exceeding the amount of the plain
Motion granted, with ten dollars costs.