Roth v. Gotthold

90 Misc. 363, 153 N.Y.S. 187

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1915
• Status: Published

Opinion

Bijur, J.

This action is brought to recover supplies sold to a trustee in bankruptcy and used in the continuation of the- business of a bankrupt. To the complaint, defendant had interposed a demurrer, which was overruled and a formal order entered thereon, the judge who rendered the decision writing an opinion.

It appears that the trustee had been authorized by the federal court to continue the business; also to raise money on receiver’s certificates “ for the use of the trustee in the continuance and operation of the business of the said bankrupt. ’ ’ The judge who overruled the demurrer was of opinion—in which I agree with him—that the decision in Matter of Erie Lumber Co., 150 Fed. Rep. 817, was decisive of the interpretation of this order, to the effect that the authority of the trustee to continue the business was dependent on raising the money for that purpose by means of receiver’s certificates. At all events, the decision overruling the demurrer is the law of this case.

Defendant thereafter interposed an answer which, so far as meeting the decision on the demurrer goes, sets out substantially that plaintiffs were creditors of the bankrupt and themselves joined in authorizing the defendant-trustee to continue the business on credit. Of this there was no proof. The judgment dismissing the complaint, therefore, was in plain disregard of the law of the case as settled on demurrer, and the judgment must, therefore, be reversed and new trial granted, with costs to appellant to abide the .event.

Guy and Pendleton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.