Kritz v. Dime Savings Bank of Brooklyn

196 A.D. 974 | N.Y. App. Div. | 1921

Under assignment from a building corporation, plaintiff comes into equity for specific performance as to the defendant bank; also seeks to follow property acquired by the codefendant with notice of plaintiff’s rights. The complaint may be sustained, therefore, without resorting to the doctrine of resulting trusts. The first separate defense sets up that the trustee in bankruptcy of plaintiff’s assignor has sued for the same causes of action, showing rights in the trustee in bankruptcy to whom such title might pass (Bankr. Act, § 70a, subd. 6);^* and as a second defense that certain releases were then given. As pleaded, this may mean a release by the corporation, which even if joined in by others would be good upon demurrer. The order denying plaintiff’s motion for judgment is, therefore, affirmed, with ten dollars costs and disbursements. Blackmar, P. J., Mils, Putnam, Kelly and Jayeox, JJ., concur.

* 30 U. S. Stat. at Large, 565, 566, § 70, subd. a, cl. 6.— [Rep.