Frank v. Musliner

New York Supreme Court

Frank v. Musliner

29 Misc. 237, 60 N.Y.S. 332

DecidedOctober 15, 1899

StatusPublished

This text of 29 Misc. 237 (Frank v. Musliner) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. Musliner, 29 Misc. 237, 60 N.Y.S. 332 (N.Y. Super. Ct. 1899).

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Opinion

Giegebich, J.

Security is not required, as of right, under the fourth subdivision of section 3268 of the Code of Civil Procedure, where a trustee in bankruptcy is the plaintiff, unless the cause of action is one “ arising before * * * the appointment of the [238]*238trustee or the adjudication in bankruptcy.” Here the cause of action is fohnded upon the fact of a transfer by the bankrupts within four months of the adjudication in bankruptcy, and the right of the trustee to maintain the action depends upon the adjudication having fallen within that period. Clearly, then, the cause of action became complete only with the adjudication, and was to be distinguished from the class of accrued demands to which the statute has reference. As matter of right, therefore, the defendants’ motion is not necessarily to be entertained, and, so far as my discretion is appealed to, I deny the application, it being apparent, upon the defendants’ admissions, that the plaintiff must succeed in the action to some extent.

Motion denied, no costs.

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Giegebich, J.

Security is not required, as of right, under the fourth subdivision of section 3268 of the Code of Civil Procedure, where a trustee in bankruptcy is the plaintiff, unless the cause of action is one “ arising before * * * the appointment of the [238]*238trustee or the adjudication in bankruptcy.” Here the cause of action is fohnded upon the fact of a transfer by the bankrupts within four months of the adjudication in bankruptcy, and the right of the trustee to maintain the action depends upon the adjudication having fallen within that period. Clearly, then, the cause of action became complete only with the adjudication, and was to be distinguished from the class of accrued demands to which the statute has reference. As matter of right, therefore, the defendants’ motion is not necessarily to be entertained, and, so far as my discretion is appealed to, I deny the application, it being apparent, upon the defendants’ admissions, that the plaintiff must succeed in the action to some extent.

Motion denied, no costs.

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Bluebook (online)

29 Misc. 237, 60 N.Y.S. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-musliner-nysupct-1899.