
    NICHOLSON et al. v. SPRAGUE et al.
    (No. 7601.)
    (Supreme Court, Appellate Division, First Department.
    July 9, 1915.)
    Contracts @=>332—Performance—Assumption of Liability—Complaint.
    A complaint against those who had taken over the assets of a corporation and assumed its liabilities must allege that the liability sued on existed in favor of plaintiffs against the corporation at the time defendants assumed the liabilities.
    [Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. @=>332.]
    ©=5For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      Appeal from Appellate Term, First Department.
    Action by Angus IC. Nicholson and others against Charles S. Sprague and another. An order of the city court overruling a demurrer to the complaint was reversed by the Appellate Term (152 N. Y. Supp. 228), and plaintiffs appeal. Affirmed.
    See, also, 152 N. Y. Supp. 1130.
    Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
    Leo J. Bondy, of New York City, for appellants.
    Lewis Hopkins Rogers, of New York City, for respondents.
   PER CURIAM.

By the allegations of the complaint it appears that the defendants took over the assets of the corporation and assumed its liabilities. That of course included only liabilities existing at the time of the transfer and assumption thereof. There is no allegation in this complaint that at that time any liability existed in favor of the plaintiffs against the corporation, as it is only alleged that prior to the commencement of the action the defendants assumed any liability. To sustain a cause of action in favor of the plaintiffs it must appear that at the time of the assumption of the liabilities, such liabilities existed in favor of the plaintiffs against the corporation.

For this reason, the determination appealed from is affirmed, with $10 costs and disbursements; the plaintiffs to have leave to amend within 10 days on payment of costs in this court and in the court below. Order filed.  