
    James L. Montgomery, Respondent, v. Robert Nathaniel Boyd and Others, Defendants; William F. Dunning and Others, Appellants.
    
      Sufficiency of a complaint, not determined on a motion to amend, — effect of an intimation of its sufficiency by the Appellate Division — action by a general creditor1to set aside a conveyance made by a non-resident decedent in alleged fraud of Ilia creditors.
    
    On a motion for leave to serve an amended complaint the court will not determine the sufficiency of the complaint.
    The fact that the Appellate Division, in determining upon a former appeal that ■ the original complaint did not state a cause of action,, intimated that, if certain facts were alleged, the complaint would he sufficient, affords an ample basis, for the allowance of an amendment to the complaint.
    
      Quaere, whether a. general creditor of a decedent, who was a non-resident at the time of his death and whose executors are non-residents and are acting under . foreign letters testamentary, and upon whose estate no administration proceedings have been taken in the State of New York, may maintain an action on-behalf of. himself and all other creditors of the decedent to set aside a conveyance of property alleged to have been made by the decedent in fraud of creditors.
    Appeal- by the defendants, William F. Dunning and others, from, a portion of an- order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of May, 1901, allowing an amendment to' a supplemental summons and amended complaint.
    
      Edward 0. EerMns, for the appellants.
    
      Stephen H. Oli/n, for the respondent.
   Hatch, J. :

The object of this action, as set forth in the. amended complaint, is to establish the claim of the. plaintiff, the assignee of certain debts and demands against James McHenry, deceased, and to obtain payment and satisfaction thereof out of property which originally belonged to said McHenry, and which the plaintiff avers was transferred in fraud of creditors.

Heretofore an order was made in the action, upon affidavits, and the complaint, directing the service of the summons upon certain non-resident defendants by the publication thereof, or personally without the State. This order was thereafter vacated upon motion of the defendants thus served, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. From the order so made vacating the service of the summons the plaintiff appealed to this court, which affirmed the order appealed from. It appeared that the plaintiff sought to maintain her action as a general creditor, as assignee of other general creditors of McHenry, now-deceased. McHenry was a non-resident at the time of his death ; his executors' are nor-residents and acting under foreign letters-testamentary; no administration proceedings have been taken in this State; and the plaintiff has never obtained a judgment at law, either against McHenry or against his representatives, and has no lien,, either legal or equitable, upon the property sought to be reached. This court, therefore, held that the complaint did not state a cause of action, but in the course of the opinion delivered said: This plaintiff could undoubtedly have maintained an action for the benefit of all the creditors, after the refusal of the representatives to set this-con veyance aside, but instead of that, she is seeking, by an ordinary-creditor’s action, to secure payment of her own debt, regardless of-what may happen to others.” W ith a view evidently of overcoming-this objection the plaintiff made this motion for leave to amend the supplemental summons and amended complaint by striking out the name of the defendant and amending the complaint in certain particulars, among other things by an averment that the action is. brought for the benefit of all the creditors of said James McHenry. This motion was granted by the Special Term and from the order so-made and entered this appeal is taken.

We think the order in this case should be affirmed, mainly for the. reason that we ought not to determine upon this motion the sufficiency of the complaint as stating a cause of action. In the case of Montgomery v. Boyd (60 App. Div. 133), language was used which authorized the inference that if certain facts were stated in the complaint a good cause of action would undoubtedly be averred. The= facts therein adverted to are supplied in the present supplemental complaint. In the former appeal in this case it was not at all necessary to a disposition of the order appealed from for the court to-determine such question, and this language is- clearly obiter.- It was. a sufficient basis, however, for the present order, and, in view of the fact that the questions involved in this action have not been definitely passed upon by the Court of Appeals, we think such question ought not now upon- this motion to be determined.

The defendants, or some bf t-heói, are still at liberty to raise, the question which they now seek to have decided by demurrer, or issue may be joined by the service of an answer and eventual appeal in either case may carry the matter into the court of last resort. The questions - aré important and involved and this--course will fully protect the rights of every party. We are not to be understood as expressing any opinion upon the fact as to whether or not the complaint states a cause of action, or that such an action, not based upon' a judgment regularly recovered, can be maintained. This court has ■recently had the questions under advisement in the case of Dittmar v. Gould (60 App. Div. 94). A similar' question has also been considered- by the Supreme Court of the United States in Cates v. Allen (149 U. S. 451). It is not necessary that we state the conclusion reached by the court in these cases. It is evident, however, that the views therein expressed may not be readily harmonized with the language used by tins court upon the appeal to which we have heretofore referred.

For these reasons it follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  