Gasper v. Bennett
New York Supreme Court
Creditor’s Bill.—The complaint in this action is in the form of an ordinary creditor’s bill under the old practice, stating the recovery of a judgment since the Code, the issuing and return of execution nulla bona, and that Bennett, the judgment-debtor, had made an assignment to the other defendants, Bennett and M£Coy, to hinder and delay creditors, and asked that the assignment be set aside, and that defendants pay their judgment.
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Creditor’s Bill.—The complaint in this action is in the form of an ordinary creditor’s bill under the old practice, stating the recovery of a judgment since the Code, the issuing and return of execution nulla bona, and that Bennett, the judgment-debtor, had made an assignment to the other defendants, Bennett and M£Coy, to hinder and delay creditors, and asked that the assignment be set aside, and that defendants pay their judgment. The defendants demur to the complaint for insufficiency, and for that it does not state facts sufficient to constitute a cause of action.
1Opinion of the Court
E. Darwin Smith, Justice.
As against the judgment-debtor alone, this action could not be sustained. Unless the complaint can be sustained with respect to him in connection with other parties, it would be but an action on a judgment forbidden by § 71 of the present Code. The complaint states the making of an assignment by the judgment-debtor to the other defendants, but does not allege that it had ever been delivered, or that the assignees had ever accepted the trust or interfered with the property; and the contrary thereof, so far as relates to the possession of the property, is expressly…
2Cases cited2 opinions
- Pettit v. ShepherdNew York Court of Chancery · 1835
- Hayner v. FowlerNew York Supreme Court · 1853
3Cited by1 opinion
- Allen v. TritchSupreme Court of Colorado · 1880