Flushing National Bank v. Abrams

270 A.D. 911, 61 N.Y.S.2d 609, 1946 N.Y. App. Div. LEXIS 4604

Opinion

In an action by a creditor to enforce against the purchaser of a dry cleaning establishment the liability provided for by section 44 of the Personal Property Law, after a trial before the court without a jury, the complaint was dismissed as to respondent on the merits, with costs. From the judgment entered thereon the plaintiff appeals. Judgment reversed on the law and the facts, with costs; judgment directed for the plaintiff for the relief provided for by the statute, with costs, and the matter remitted to Special Term for the entry of judgment accordingly. On June 8, 1944, when the purchase price was placed in escrow, and when possession of the property transferred was delivered to the purchaser, there were then, to the knowledge of the purchaser and his attorney, at least three creditors. Under such circumstances the purchaser was required to comply with the provisions of section 44, and, having failed to do so, became responsible under subdivision 3 of that section. While it is true that the three creditors referred to were paid before June 13th, when the purchase price in escrow was released to the vendor and the vendor then executed and delivered an affidavit to the effect that he had no creditors, as we construe the statute, this subsequent development did not change the situation for legal purposes. The so-called “motion for a new trial” upon affidavits was, in effect, merely a motion for a reargument, and the denial of said motion does not raise any question for determination here. The appeal from the order entered thereon is, therefore, dismissed, without costs. Hagarty, Acting P. J., Carswell, Adel, Aldrich and Nolan, JJ., concur.