Jaburg v. Kirschenbaum

• Decision Date: 20 May 1919
• Docket Number: No. 46/311.,46/311.
• Citation: 107 A. 60
• Parties: JABURG et al. v. KIRSCHENBAUM et al.
• Court: New Jersey Court of Chancery

107 A. 60

JABURG et al.

v. KIRSCHENBAUM et al.

No. 46/311.

Court of Chancery of New Jersey.

May 20, 1919.

Syllabus by the Court.

Suit by Hugo Jaburg and another, copartners doing business under the firm name of Jaburg Bros., against Fannie Kirschenbaum, as administratrix, and others. On motion to strike the bill. Motion denied.

Bloom & Lasher, of Newark, for the motion.

Joseph Steiner, of Newark, opposed.

LANE, V. C. The bill alleges that on January 13, 1919, Joseph Kirschenbaum was indebted to complainants in a certain sum for goods sold by them to him; on January 13th he sold a stock of merchandise and fixtures in bulk to Benjamin Newman; the proceedings were wholly in violation of the provisions of chapter 208 of the Laws of 1915, P. L. 1915, p. 377; Newman entered into possession of the property, and still is in possession; on February 5th Joseph Kirschenbaum died intestate, and on March 5th Fannie Kirschenbaum applied for and was duly granted letters of administration upon his estate; complainants have presented their bill to both Newman and Fannie Kirschenbaum as administratrix, and both have refused to pay, although the administratrix has admitted that the debt is due; complainants are precluded from bringing action against Fannie Kirschenbaum as administratrix obtaining judgment and levying execution until six months after the death of the intestate, at which time the remedy provided for by the statute for attacking the sale by Joseph Kirschenbaum to Benjamin Newman, either at law or in equity, will have expired (the time limited by the act commonly called the Bulk Sales Act being 90 days from and after the date of the sale); Fannie Kirschenbaum is liable as administratrix to complainants, and they have no method of ascertaining whether or not she will be financially responsible when the time arrives when complainants may proceed against her at law; Benjamin Newman is financially responsible, and complainants are precluded from proceeding against him at law because he did not contract the debt in question and because their right to proceed against him at law only arises after judgment against Fannie Kirschenbaum as administratrix and execution returned unsatisfied; the prayer of the bill is that a decree may be made declaring the said sale fraudulent and void and requiring the defendants, or one of them, to pay complainants' bill, and that a receiver be appointed to operate and manage the business until the amount of the debt is raised therefrom and for an injunction prohibiting defendant Newman from disposing of the assets of the business.

The motion to strike is made by the administratrix, and the argument was confined to two points: First, that the statute precludes an action at law or in equity against the administratrix within six months after the death of her intestate where the object of the action is to obtain a money judgment against the estate; and, second, that neither the Bulk Sales Act nor the statute of frauds can be available to complainants until they have their debt fastened on their debtor's property by law or by judicial process. And upon the second point reliance is placed solely upon the opinion of Vice Chancellor Stevens in Muller v. Hubschman, 84 N. J. Eq. 30, 96 Atl. 189.

The first objection may be disposed of by granting leave for the institution of the action as provided for in section 65 of the Act Concerning Orphans' Court, 3 C. S. of N. J. 3832. In view of the fact that complainants will be deprived of taking advantage of the provisions of chapter 208 of the Laws of 1915, P. L. 1915, p. 377, unless a suit of this nature can be brought, I think that leave should be granted. It may be granted nunc pro tunc as of a date prior to the filing of the bill, or, if counsel are so advised, the bill may be refiled.

Without considering the question as to whether the objection secondly indicated, i. e., that complainants do not show that they have a lien upon the goods now in possession of Benjamin Newman, can be raised by the administratrix of the deceased debtor, I will pass upon its merits.

The present case, I think, is distinguishable from Muller v. Hubschman, 84 N. J. Eq. 30, 96 Atl. 189. In that case Vice Chancellor Stevens held that before a creditor can attack a sale made in violation of the Bulk Sales Act, chapter 208 of the Laws of 1915, he must have his debt fastened on the property, and that a general creditor prior to obtaining by judgment, execution, or otherwise, a lien upon the property cannot proceed by bill in this court. In that case the original debtor was living and there was nothing in the way of a proceeding at law against him, the obtaining...