90 N.J. Eq. 510 | New York Court of Chancery | 1919
The bill alleges that on January 13th, 1919, Joseph Kirschenbaum was indebted to complainants in a certain srnn for goods
The motion to strike is made by the administratrix and the argument was confined to two points — first, that the statute precludes an action at law or in equity against the administratrix
Without considering the question as to whether the objection secondly indicated — i. e., that complainants do not show that they have a lien upon the goods now in possession of Benjamin Newman, can be raised by the administratrix of the deceased debtor, I will pass upon its merits. The present case, I think, is distinguishable from Muller v. Hubschman, supra. In that case Vice-Chancellor Stevens held that before a creditor can attack a sale made in violation of the Bulk Sales act, chapter 280 of the laws of 1915, he must have his debt fastened on the property, and that a general creditor prior to obtaining by judgment, execution or otherwise, a lien upon the' property, cannot proceed by bill in this court. In that case the original debtor was living and there was nothing in the wajr of a proceeding at law against him, the obtaining of a judgment and execution thereon. He held that the mere fact that the right of attack under the Bulk Sales act was limited to ninety days was not, of itself, a ground for a different rule. The contention is made by counsel that Vice-Chancellor Stevens indicated that it was a prerequisite that the creditor should have a judgment and based that contention upon the language of the vice-chancellor (at p. 32 of 84 N. J.
The argument that this court would be obliged to determine the amount of the debt due from the estate, properly determinable in' a court of law, is not persuasive. That argument was answered by the court of errors and appeals in Haston v. Castner, 31 N. J. Eq. (at p. 701). The fact that neither the existence nor the amount of a debt has been conclusively established at law does not prevent this court acting in aid of attachment. I assume from the charges in the bill that the claim of the creditor has been properly presented to the administratrix. Ho point is made that it does not so appear. It is charged in the bill that the administratrix has admitted the correctness of the bill. If necessary there is no reason whatever why the cause in this court should not be held pending an adjudication as to the amount of the claim by the probate or law courts.
The motion to strike the bill will be denied.
I have considered all of the points argued before me.