Opinion
May, 1917.
By this action the plaintiff, as assignee of a judgment creditor of John Moeckel and Harry Kersting, formerly copartners in business, seeks to set aside a transfer by said copartners of the goods, lease and business conducted by said copartners to the defendant Marcus Bower. By the complaint it would appear that the transfer was claimed to be void under the Bulk Sale Act (Pers. Prop. Law, § 44), and so it clearly was. It was also void, according to the evidence, under section 36 of the Personal Property Law in that it was not accompanied by an immediate delivery followed by actual and continued change of possession. The evidence does not clearly show that plaintiff's assignor was a creditor at the time the transfer was made. This objection, whether it be of consequence or not, was not made at the trial. If it had been perhaps it could have been met by proof. At all events it cannot be taken advantage of for the first time on appeal. The judgment should be reversed and a new trial granted, with costs to appellant to abide the event. The findings that the sale was not fraudulently made and that said sale was within the provisions of the statute are hereby reversed. Clarke, P.J., Laughlin, Davis and Shearn, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.