Adolph Kiendl, as Trustee in Bankruptcy of Abraham Dubroff, a Bankrupt, Respondent, v. Abraham Dubroff and Others, Defendants, Impleaded with Barnet Abramowitz and Ida Abramowitz, Appellants

Adolph Kiendl, as Trustee in Bankruptcy of Abraham Dubroff, a Bankrupt, Respondent, v. Abraham Dubroff and Others, Defendants, Impleaded with Barnet Abramowitz and Ida Abramowitz, Appellants. Second Department, December 30, 1909. Practice —■ suit by trustee in bankruptcy — security for costs. A trustee in bankruptcy suing to set aside fraudulent conveyances made by the bankrupt will be required to give security for costs pursuant to section 8268 of the Code of Civil Procedure, where it appears that more than six months before the adjudication in bankruptcy the creditors in whose behalf the trustee sues had obtained judgment against the bankrupt and the execution thereon had been returned unsatisfied co that a creditor’s suit could have been maintained by them. Appeal by the defendants, Barnet Abramowitz .and another,. from an order of the Supreme Court, made at the Sings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of August, 1909, vacating an order entered on the 19th day of May, 1909. Jacob Landy, for the appellants. Isaac Miller, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The plaintiff, trustee in bankruptcy of the defendant Abraham Dubroff, brought this action to set aside certain conveyances affecting the real and personal property of the bankrupt. The complaint alleges that Dubroff was adjudicated a bankrupt in February, 1909, and that the plaintiff was elected trustee on March 9,1909. The conveyances complained of were all made by the bankrupt more than eight months before the adjudication of bankruptcy. On May 19, 1909, an exparte order was made at Special Term requiring the plaintiff to give security for costs, under the provisions of section 3268 of the Code of Civil Procedure, which was subsequently, upon motion, vacated and set aside upon the ground that the determination of whether security for costs should be required was addressed to the discretion of the court under the provisions of section 3271 of the Code of Civil Procedure, and could be considered only upon notice, From the order accordingly entered this appeal is taken. The only question presented by the record requiring our considation is whether the plaintiff’s alleged cause of action arose prior to the adjudication in bankruptcy and the appointment of the trustee. If it did, the defendants were entitled, as matter of right, to the order requiring the security for costs, and the order appealed from must be reversed. The record shows that several judgments were obtained against the bankrupt in May and June, 1908, upon which executions were issued and returned unsatisfied prior to June thirtieth of that year, from which it must follow that more.than six months before the adjudication in bankruptcy a cause of action to set aside and have the alleged fraudulent conveyances declared void existed in favor of such judgment creditors, and the case is brought within the provisions of section 3268 of the Code of Civil Procedure. Í am unable to find any authority conflicting with the rule stated in Joseph v. Raff (75 App. Div. 447). Kronfeld v. Liebman (78 App. Div. 437) is not in point, as in that case there was no proof before the court of the issuance and return of executions unsatisfied prior to the bankruptcy adjudication, until which time a judgment creditor was not in a position to maintain an action to set aside the fraudulent conveyances, and the cause of action alleged by the trustee in bankruptcy had not arisen. (Adsit v. Butler, 87 N. Y. 585 ; Prentiss v. Bowden, 145 id. 342.) It follows that the order must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for security denied, with costs. Jehks, Burr, Thomas and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion to vacate order for security denied, with costs.