| N.Y. Sup. Ct. | Jun 21, 1948
In an action to set aside a sale of goods in bulk, plaintiff moves, pursuant to section 44 of the Personal Property Law, for the appointment of a receiver. Defendants Paradiso cross move for summary judgment dismissing the complaint.
Plaintiff claims to be a creditor of defendant Both, who sold his retail grocery business to defendant Anthony Paradiso. The application for a receiver is based on the purchaser’s failure to comply with the provisions of section 44 of the Personal Property Law. The purchaser, who had no actual knowledge of any creditors, inquired of the seller concerning their existence. He examined the statements on file at the place of business, obtained an affidavit from the seller purporting to list all of them with the amounts due, and made provision for the payment of those listed. Plaintiff was not named in said list. It has been held that where a seller swears that he has no creditors and none is disclosed by a careful inquiry by the buyer, who has no knowledge of any, the buyer is not required to comply with the provisions of section 44 of the Personal Property Law. (Ahlers, Inc., v. Dingott, 173 Misc. 873" court="N.Y. Sup. Ct." date_filed="1940-01-24" href="https://app.midpage.ai/document/carl-ahlers-inc-v-dingott-5425748?utm_source=webapp" opinion_id="5425748">173 Misc. 873.)
The case of Texas Co. v. Drexelius (176 Misc. 371" court="N.Y. Sup. Ct." date_filed="1941-05-09" href="https://app.midpage.ai/document/texas-co-v-drexelius-5426194?utm_source=webapp" opinion_id="5426194">176 Misc. 371), is clearly distinguishable. There the sellers furnished the buyer with a
Plaintiff’s motion for a receiver is denied and defendants’ cross motion for summary judgment dismissing the complaint is granted.
Settle order on notice.