
    Morris Friedman, Charles Friedman and Israel Oldelman, Copartners Doing Business as Friedman Bros. & Oldelman, Appellants, v. Morris Zweifler, Sued Herein as “ Morris ” Zweifer, and “ Charles ” Wicentowsky, Copartners, etc., Respondents.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Bankruptcy — Effect of bankruptcy proceedings on other proceedings or remedies of creditors-—Effect of proceedings in bankruptcy on proceedings pending in State court — Effect of actions against bankrupt.
    Municipal Courts — Procedure — Pleading — Complaint — Failure to state cause of action — Remedy.
    In the Municipal Court of the City of Hew York, where the pleadings are oral and the defendant puts in a general denial on the return day, a motion to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action is not thereafter available to the defendant.
    In an action against two defendants, an adjudication in bankruptcy against one of them does not oust the co-urt of jurisdiction and, in the absence of a restraining order from the bankruptcy court, the suit should be permitted to proceed.
    
      Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, second district, rendered in favor of the defendants.
    Horace London, for appellants.
    Jacob Cebulsky, for respondents.
   Per Curiam.

This is an appeal, by the plaintiffs, from a judgment of the Municipal Court dismissing plaintiffs’ complaint on the ground of. want of jurisdiction. The action is for goods sold and delivered and brought against two defendants as copartners. One defendant only was served, the other neither was served nor appeared. On the return, day the pleadings were oral; the complaint being for goods sold and delivered; the answer a general denial and no jurisdiction. On the day of the trial, before any testimony was offered, the defendant moved to dismiss the complaint on the ground of want of jurisdiction, the defendant not served having been adjudicated a bankrupt, and on the further ground that the complaint did not state facts sufficient to constitute a cause of action. The pleadings being oral and the defendant having put in a general denial on the return day, this latter ground was not available. Samuelson v. Meyer, 138 App. Div. 874. The motion to dismiss the complaint was granted on the ground of want of jurisdiction; this was error. The fact that one of the defendants had been adjudicated a bankrupt, if true, did not oust the court of jurisdiction. If a discharge in bankruptcy had been secured that fact could have been pleaded as a defense. The bankruptcy court may grant a stay restraining the prosecution of suits against the bankrupts (Bankruptcy Act, §. 11) ; but, in the absence of such restraining order, the adjudication presents no reason why a suit should not be prosecuted.

Present: Giegebich, Lehman and Pendleton, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event,  