Bamberger v. Fillebrown

33 N.Y.S. 614, 12 Misc. 328

• Court: The Superior Court of the City of New York and Buffalo
• Decided: May 6, 1895
• Status: Published

Opinion

FREEDMAN, J.

Upon the facts alleged in the complaint, which stand admitted by the demurrer, there is no misjoinder of parties plaintiff, and the court has jurisdiction of the subject-matter of the action, and the plaintiff has set forth a sufficient cause of action. This is an action brought by a receiver in a creditors’ action to have priorities determined after conflicting claims had been made against the same fund remaining in his hands after final judgment. The jurisdiction of a court of equity to entertain such an action is firmly established. It is no answer to say that the same result might be reached by motion. This is always doubtful, for, even if the power should exist in a particular case to pass upon conflicting claims in a summary way, yet, if a conflict as to the facts should be presented by the affidavits of the different parties in interest, the exercise of the power may be declined, and the parties left to their remedy by action. The judgment and order should be affirmed, with costs. All concur.