
    Oliver H. P. Merritt, as Trustee of Andrew Kaeyer and Ludwig Skoglund, Bankrupts, Respondent, v. Alexander B. Halliday, Appellant.
    
      Action at law to recover money paid by a bankrupt to a creditor with intent to give a preference.
    
    ■ An. action by a trustee in bankruptcy, under the provisions of subdivision b of . section 60 of the Bankruptcy Law, to recover moneys paid to the defendant, a creditor of the bankrupt,' on the. ground that the creditor had reasonable cause to believe that the payment was made with intent to give him a preference, is one at law, where there is no public record to be reformed', no deed or conveyance to be set aside, nor any other relief asked than the simple recovery of a sum of money. ■ - -
    _Appeal by the defendant, Alexander B. Halliday, from an interlocutory judgment of the City Court of the city of Yonkers in favor of the plaintiff, entered on the 13th day of June, 1904, upon the decision of 'the court overruling the defendant’s demurrer to .the plaintiff’s complaint.
    
      Alexander B. Halliday (Edward S. Kaufman with him on the brief), appellant, in person.
    
      John H. Ferguson, for the respondent.
   Woodward, J.:

This action was brought by the trustee in bankruptcy of Andrew Kaeyer and Ludwig Skoglund, to recover $299.68 and interest, which sum the plaintiff claims to be entitled to under the provisions of subdivision b of section 60 of the Bankruptcy Law (30 U. S. Stat. at Large, 562, as amd. February 5, 1903, by 32 id. 800, § 13). The section as it now stands provides as follows: “ If a bankrupt shall have given a preference, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. And, for the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.”

There is no question that the City Court of Yonkers has jurisdiction of an action to recover, a sum of money only, in the amount here involved (Laws of 1893, chap. 416, tit. 1, §§ 1, 2), and the question raised by the demurrer, that the court has no jurisdiction of the subject of the action, goes to the form of the action rather than to the substance. The. City Court of Yonkers has only a limited equitable jurisdiction, and if the action now under consideration is one of equitable cognizance only, the demurrer should be sustained. If, however, the action is one fairly within the scope of an action at law, there would appear to be no good reason for sustaining the demurrer, as it cannot be presumed that the final result would be materially different, whether tried as an action at law or one in equity.

The Bankruptcy Law contemplates that for a period of four months preceding bankruptcy it shall not be within the power of the bankrupt to give a preference to one creditor over another, and to accomplish this purpose it provides that upon a person being adjudicated a bankrupt the law relates back to a period four months before the filing of the petition, and practically vests the bankrupt’s property in the trustee as of that date, to the extent, at least, of giving such trustee power to determine whether the property has been properly disposed of in view of the pending bankruptcy. That is, while at common law the debtor would have a perfect right to pay any creditor to the exclusion of another or of all others, in the absence of fraud, under the Bankruptcy Law he is limited in this ■ right for a period of four months prior to the filing of a petition in bankruptcy or after the filing of the petition and before the date of adjudication ; during that period the property is constructively in the hands of the trustee for equitable distribution among the creditors, and the bankrupt accepts the benefits of' the act subject to that limitation upon his rights, and the creditor transacts his business subject to this risk. Subdivision b of section 60 of. the Bankruptcy Law (as amd. supra) provides what courts shall have-jurisdiction in an action to recover the property, which, of course, includes money, and if we consider the intent and purpose of the Bankruptcy Law, and view the money and property of the bankrupt as constructively in the hands of the trustee at the time it is improperly paid over to the creditor, there would seem to oe no • good reason why the trustee might not bring -a simple action at law to recover the amount so impi’operly paid over. There is, in this case, no public record to be reformed, no deed or conveyance to be set aside; all that is desired is the recovery of a sum of money which constructively belongs to'the trustee of the bankrupt. It is in form and substance an action at law, and while it may be plausibly argued that it is in the nature of an action to set aside a constructive fraud, no consideration of justice or equity requires a refinement of reasoning in this case, and we are of opinion that we should regard the decision in Stern v. Mayer (99 App. Div. 427)' as "controlling here. .

The interlocutory judgment appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks and Rich, JJ., concurred; Bartlett, J., concurred in result.

Interlocutory judgment of the City Court of Yonkers affirmed,, with costs.  