212 A.D. 282 | N.Y. App. Div. | 1925
The action is brought by the plaintiffs as copartners in their own behalf and that of all other creditors of the defendant Stertz & Mullin Woodworking Co., Inc., under section 44 of the Personal Property Law, to declare a sale of fixtures, machinery and merchandise of said corporation to the defendant, appellant, Kriser,
I think the complaint states a good cause of action, and if the plaintiffs are able to establish the truth of their allegations they will be entitled to the relief sought. Under the allegations of the complaint the plaintiffs are copartners in business. The defendant Stertz & Mullin Woodworking Co., Inc., is a domestic corporation organized under the laws of this State. The plaintiffs further allege that the question which is the subject of this action is one of common and general interest to the creditors of said woodworking company. In the 4th paragraph of plaintiffs’ complaint it is alleged that the plaintiffs were and are creditors of the defendant Stertz & Muffin Woodworking Co., Inc., on account of goods theretofore sold and delivered by plaintiffs to said woodworking company at its request and upon an agreed price of $2,519.81, no part of which has been paid, except the sum of $1,100. In the 5th paragraph of the complaint it is alleged: “ That heretofore and prior to the 19th day of February, 1924, said defendant, Stertz & Muffin Woodworking Co., Inc., was engaged in the business of woodworking and cabinet work at No. 420 East 106 Street, in the City of New York.”
Then follows the 6th paragraph of the complaint, as follows:
“Sixth. That on and before said 19th day of February, 1924, said defendant, Stertz & Muffin Woodworking Co., Inc., sold and transferred to the defendant, Charles Kriser, the said business, together with the goods, wares, merchandise, fixtures and machinery thereof in bulk by a bill of sale and said transfer and sale were not made in the ordinary course of trade or in the regular prosecution of the business of the defendant, Stertz & Muffin Woodworking Co., Inc., and are fraudulent and void as against plaintiffs and the other existing creditors of the defendant, Stertz & Muffin Woodworking Co., Inc.”
The plaintiffs then allege that the defendant Kriser did not give notice thereof to the creditors of the defendant five days prior to said purchase and sale, and that the defendant Stertz & Muffin Woodworking Co., Inc., entirely failed to conform with the requirements or to do any other of the things prescribed in section 44 of the Personal Property Law to render valid such sale of property in
Section 44 of the Personal Property Law (as amd. by Laws of 1914, chap. 507), known as the Bulk Sales Act, provides as follows:
“ § 44. Transfer of goods in bulk. 1. The sale, transfer or assignment in bulk of any part or the whole of a stock of merchandise, or merchandise and of fixtures pertaining to the conducting of the business of the seller, transferrer or assignor, otherwise than in the ordinary course of trade and in the regular prosecution of said business, shall be void as against the creditors of the seller, transferrer or assignor unless the seller, transferrer or assignor and the purchaser, transferee or assignee shall at least five days before the sale make a full and detailed inventory, showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the seller, transferrer or assignor of each article to be included in the sale; and unless the purchaser, transferee or assignee demand and receive from the seller, transferrer or assignor a written list of names and addresses of the creditors of the seller, transferrer or assignor with the amount of the indebtedness due or owing to each and certified by the seller, transferrer or assignor under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and unless the purchaser, transferee or assignee shall at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally or by registered mail every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.”
It is the contention of the appellant that the sale alleged and set forth in the complaint was not such a sale of merchandise, or merchandise and fixtures as was contemplated by section 44 of the Personal Property Law. It seems to me that when the plaintiffs alleged, as they did in their complaint here, that the woodworking company sold and transferred to the defendant Kriser the said business “ together with the goods, wares, merchandise, fixtures and machinery thereof in bulk,” it clearly alleged a fact bringing the transaction within section 44 of the Personal Property Law, and that the failure of the parties to such transaction to have made the inventory and to give the notice to the creditors and observe the other provisions of section 44 of the Personal Property Law,
“ These statutes should be construed and applied with a view to cure the evil at which they are aimed, which is the defrauding of
There is no proof before us but that the Stertz & Mullin Woodworking Co., Inc., while engaged in the business of woodworking and cabinet work, were not also engaged in the business of retailing the goods, wares and merchandise which they manufactured. Indeed, the complaint expressly alleges that the sale of the business was made to the defendant Kriser, together with the goods, wares, merchandise, fixtures and machinery thereof in bulk, and that such sale was not made in the ordinary course of trade or in the regular transaction of the business of said defendant, Stertz & Mullin Woodworking Co., Inc.
The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent against the appellant.
Clarke, P. J., Finch and Martin, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.