Opinion
September 22, 1943.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and McCurn, JJ.
Judgment modified on the law by striking therefrom the allowance of $350 which the court made to plaintiff for attorneys' fees and, as so modified affirmed, without costs of this appeal to any party. Order entered February 8, 1943, so far as appealed from, and order entered February 24, 1943, affirmed, without costs. Appeal from order entered February 20, 1943, dismissed, without costs, as academic in view of the decision on the appeal from the judgment herein. Memorandum: We think that — as the statute read prior to its amendment (L. 1943, ch. 172, eff. Sept. 1, 1943) — the plaintiff was not a judgment creditor within the meaning of section 276-a Debt. Cred. of the Debtor and Creditor Law. (See Irvin v. Schardt, 259 App. Div. 474, affd. 286 N.Y. 668. ) All concur. (The judgment determines certain chattel mortgages executed by defendant Benjamin Barnett not to be a lien upon the assets of plaintiff's bankrupt except for the amounts due upon one claim, and makes an additional allowance of costs to plaintiff. The portion of the order, entered February 8, 1943, appealed from by plaintiff allows defendant bank to submit findings nunc pro tunc and amends the decision; the order entered February 20, 1943, denies defendant Cantrell's motion to vacate plaintiff's judgment; the order entered February 24, 1943, denies defendants Barnetts' motion to amend the judgment.)