50 Barb. 430 | N.Y. Sup. Ct. | 1867
1. Undoubtedly it is now well established that, ordinarily, a creditor of the estate of a deceased person cannot maintain an action against a fraudulent vendee of the latter to impeach the sale of personal property, unless the executor and administrator should collude with the fraudulent vendee, or, after reasonable request, refuse to take proceedings to impeach the title and reach the property in his hands. (Bate v. Graham, 1 Kern. 237.) But this ordinarily applies
2. The only remaining question of which I had any doubt, was whether the issuing of the execution and exhaustion of the legal remedy was sufficiently stated. But, on referring to Cheney v. Fisk, (22 How. Pr. 236,) I find it decided at general term, that when-the fact is alleged in the complaint, that the plaintiff was duly appointed a receiver, which, if denied in the answer, the plaintiff would be bound to show by competent evidence, the facts necessary to constitute him a lawful receiver, the allegation in the complaint will be considered sufficient. The remedy seems to be under section 160
The demurrer is overruled, with costs, with liberty to the defendants to answer within twenty days, on payment of said costs.
Clerke, Justice.]