Werbelovsky v. Michael, 94 N.Y.S. 156

Werbelovsky v. Michael

94 N.Y.S. 156 | N.Y. App. Div. | 1905

Miller, J.:

The order appealed from restrains the defendant Michael from collecting or receiving certain moneys held by the defendant Rosenberg, and from prosecuting an action in the Municipal Court of the city of Hew York against said Rosenberg to recover said moneys. The action is brought to ■ set aside ah assignment of said moneys made by. the defendant' Kurtz' to the' defendant Michael on the ground that the same was fraudulent and void as to creditors. The order is undoubtedly irregular in that it does not recite the grounds, *139upon which it was granted, and in that it does not require the plaintiff to give security required, by section 611 of the Code of Civil Procedure. These irregularities, however, could be corrected were it not for a fundamental defect in the moving papers. Whether the application is made under section 603 or section 604 of the Code of Civil Procedure, we think it should not be granted except upon proof that the plaintiff has a cause of action. The plaintiff sues as judgment creditor, and the only statement in the moving papers tending to establish that he is a judgment creditor of the defendant Kurtz is the bare allegation contained in the complaint “That on or about the 6th day of September, 1904, the plaintiff recovered a judgment against the defendant Jacob Kurtz, in the Municipal Court of the City of New York, Borough of Brooklyn, Third District, for the sum of Four hundred and fifty-nine and 27-100 ($459.27) dollars, in an action wherein this ]Dlaintiff was plaintiff, and the said defendant Jacob Kurtz was defendant.” There is no allegation tending to show that the Municipal Court had jurisdiction either of the parties or of the subject-matter, and there is no statement that the plaintiff is even a creditor of the defendant Kurtz. The mere fact that a'judgment was rendered in the Municipal Court in his favor and against said defendant does not establish his right to maintain the action, and there is no presumption that the court had jurisdiction. (Frees v. Blyth, 99 App. Div. 541.) If the application were made under section 603 of the Code of Civil Procedure the defect in the complaint would clearly be fatal (McHenry v. Jewett, 90 N. Y. 58), and could not be supplied even by affidavits. If the application is treated as made under section 604 of said Code, the plaintiff is in no better position, because the moving papers do not contain the necessary statements to show that the plaintiff has any standing to maintain the action.

The order should, therefore, be reversed, with ten dollars costs and disbursements.

Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

Order reversed, with ten dollars, costs and disbursements, and motion denied, with costs, but without prejudice to a renewal of the motion upon proper papers.