Opinion
February 26, 1926.
Saperston, McNaughton Saperston, for the plaintiffs Leon Hersch Corporation and others.
MacGregor Dale, for the plaintiffs Bert Goldman and another.
Knibloe, Lipsite Lipsite, for the defendant.
Upon the trial it was proven that one Pincus Cohen had sold his entire stock of jewelry and fixtures in his retail jewelry business, conducted under the name of "Coles" in the city of Buffalo, and that neither the seller nor the purchaser, the defendant, Max Goldberg, gave the five days' notice in writing to the creditors, as provided in section 44 Pers. Prop. of the Personal Property Law (as amd. by Laws of 1914, chap. 507).
It was further proven that certain judgments had been secured against said Pincus Cohen. Further proof was made that there were a number of creditors of the said Pincus Cohen, but that such debts had not been reduced to judgment, and in view of the fact that the said Pincus Cohen was not made a party to this action, I am of the opinion that such creditors who had not reduced their claims to judgment could not avail themselves of the provisions of section 44 Pers. Prop. of the Personal Property Law.
In view of the fact that there were judgment creditors, and that the notice was not given, I am of the opinion that, as to such judgment creditors, the transfer was void, and that the said Max Goldberg holds the stock and fixtures as a trustee for the creditors, and that a receiver should be appointed. In view of the fact that such receivership may continue until the simple creditors have reduced their claims to judgment, I am of the opinion that this is an action in which a disinterested party should be appointed as a receiver. I name Jacob Kick, a counselor of this court, as such receiver.
Findings and judgment may be prepared and submitted, embodying the provisions of the above decision. The judgment creditors who appear as plaintiffs may have one bill of costs.