Richter v. Nimmo

Plaintiff sues to recover $100. He complains that Torrey was adjudicated a bankrupt in December, 1898; that defendant sued Torrey in October, 1898, to recover $300 and attached property of Torrey; that at the time Torrey was insolvent as defendant well knew; and, “Seventh. That thereafter one hundred dollars' was paid to said defendant on account of said claim.” The defendant contends that this allegation is insufficient, in that it does not allege that the $100 was paid by Torrey out of his estate, and, therefore, for aught pleaded,- it may have been paid by some third person and not out of the funds of Torrey. His demurrer, taken upon this ground, was sustained and the plaintiff appeals.

The cause of action depends upon the fact that Torrey, in effect, gave a preference to the defendant, and, therefore, requires allege tion and proof that the payment was made out of Torrey’s estate, I think that we may properly consider that this action, founded *423upon a statute, must be directed against a virtual preference, in that it does not lie, unless the money sought to be recovered thereby had been received in depletion of the bankrupt’s estate. Imperfect pleading is not fatal. (Kain v. Larkin, 141 N. Y. 144.) I am of opinion that it may fairly and reasonably be inferred from the standing allegation that the charge is that the payment was made from Torrey’s funds, and I think that evidence of such fact is admissible under the allegation.

The pleading is not to be commended, but I think that it is ■sufficient under the authorities to put the defendant to his answer. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Sage v. Culver, 147 id. 241; Kain v. Larkin, supra.) The facts, if stated by implication, are none the less traversable. (Marie v. Garrison, 83 N. Y. 14; Sage v. Culver, supra.)

The interlocutory judgment is reversed, with costs.

All concurred.

Interlocutory judgment reversed, with costs.