
    Simon T. Stern, as Trustee in Bankruptcy of the Estate of Hyman Gattle, Respondent, v. David Mayer, Appellant.
    
      Bankruptcy — action by a trustee to recover a money judgment because of an alleged, preference given to the defendant by the bankrupt—it is triable before a jury — where the transfer was by deed or bill of sale it is otherwise—such an action in a State court is governed by State procedure.
    
    Where a trustee in bankruptcy brings an action in the Supreme Court of the State of New York, pursuant to subdivision b of section 60 of the National Bankruptcy Act, which provides, “ 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,” if the property transferred is personal property and the transfer was not effected by a bill of sale or other written instrument, and no equitable relief is necessary, and the complaint demands judgment for a sum of money only, the action is one which must, under section 968 of the Code of Civil Procedure, be tried before a jury.
    
      Semble, that if the property transferred was real property or if the transfer had been effected by a written instrument, thus necessitating equitable relief, the action would be triable at Special Term.
    When an action is brought in the courts of the State of New York, under the authority given by the National Bankruptcy Act, questions as to the trial and as to the procedure in the action are to be determined by the laws of the State of New York.
    Van Brunt, P. J., and Patterson, J., dissented.
    Appeal by the defendant, David Mayer, from 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 3d day of October, 1904, granting the plaintiff leave to strike the above-entitled action from the Trial Term calendar and to renotice the cause for trial at Special Term.
    
      
      A. S. Gilbert, for the appellant.
    
      M. Mackenzie, for the respondent.
   Ingraham, J.:

The question presented on this appeal is whether this action is at law triable at Trial Term or in equity triable at Special Term. The complaint alleges that one Hyman Gattle was duly adjudicated a bankrupt, and the plaintiff appointed and qualified as trustee on the 24th day of August, 1903 ; that the defendant claimed to be a creditor of the bankrupt, and in the month of May, 1903, the bankrupt while insolvent had delivered to the defendant, an alleged creditor, a quantity of merchandise of the value of $2,200 as security for the alleged indebtedness; that at the time of said delivery the defendant had reasonable cause to believe that the bankrupt was insolvent, and that it was intended then to give the defendant a preference; that the plaintiff had duly demanded delivery of the said property and the defendant has neglected and refused to transfer or deliver the same or any part thereof, wherefore the plaintiff demands judgment for the sum of $2,200, with interest.

The answer is in effect a general denial of the material allegations of the complaint. Both parties noticed this action at Trial Term, and the case was placed on the calendar; whereupon the plaintiff made a motion at Special Term to transfer the cause from the Trial Term to the Special Term calendar, and from an order granting that motion the defendant appeals.

Section 968 of the Code of Civil Procedure provides as follows : “ In each of the following actions, an issue of fact must be tried by I a jury unless a jury trial is waived or a reference is directed :

“1. An action in which the complaint demands judgment for a I sum of money only.”

Section 969 provides that “an issue of law, in any action, and anl issue of fact, in an action not specified in the last section, or wherein! provision for a trial by a jury is not expressly made by law, must bel tried by the court, unless a reference or a jury trial is directed.”

This action is directly within subdivision 1 of section 968, for thel complaint demands a judgment for a sum of money only. No equi-l table relief is asked for, nor is equitable relief necessary to entitle the plaintiff to recover. The plaintiff’s cause of action is based upon! subdivision b of section 60 of the Bankruptcy Law (30 U. S. Stat. at Large, 562, as amd. by 32 id. 800). That subdivision 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.” This provision gives to the trustee the right to recover the property or its value from any person who has received it in violation of the act from a bankrupt.

The nature of the action brought for this recovery depends upon the judgment that will be required to vest the property or its proceeds in the trustee. Where real property has been conveyed by a bankrupt to a creditor to secure a title to the property in the trustee, a resort to a court of equity is necessary to declare void the deed or conveyance, or to compel the creditor to reconvey. Such an action is in equity, but where the property transferred is personal property, and no written instrument is required to be set aside and no equitable relief is necessary to enable the trustee to recover the property or its value from the creditor to whom it has been transferred, the action is one which, under the Code of Civil Procedure, must be tried by a jury.

The case of Houghton v. Stiner (92 App. Div. 171) is not an authority for the position that an action at law cannot be maintained by a trustee to recover the property or its value, transferred in violation of the Bankruptcy Law. Mr. Justice O’Brien, in the opinion in that case, after citing the provision of the Bankruptcy Law (supra), said : “ There is nothing in this language, nor is there any provision of the Bankruptcy Law which prescribes the remedy or the form of action that a trustee is authorized to maintain to enforce the rights invested in him by the section quoted.” The plaintiff in that case brought an action in equity for an accounting, and the precise question was whether a trustee in bankruptcy, who, by appropriate allegations and prayer for relief, seeks that remedy, can maintain the action in equity, or, as contended by the defendant, is exclusively confined to an action at law. It was held that he could maintain an action in equity, if necessary for the enforcement of the rights secured to him by the Bankruptcy Law, and attention was called to the fact that it may well be that the transfer from the debtor to the creditor has been evidenced bv a deed in writing if it relates to real estate, or by a bill of sale in writing if it has reference to personal property; and as these instruments, valid when made, must necessarily be destroyed and set aside, a phase of litigation is presented of which equity has usually assumed jurisdiction. Such relief is granted in an action in equity and not in one at law. What was there decided was that a trustee, when equitable relief was necessary, could maintain an action in equity to recover possession of the property transferred. It was not decided that where no other relief, except a judgment for the property or its value, was necessary an action at law would not lie. The question here presented is whether under the laws of this State such an action as was here com- ' menced by the trustee to recover the property, or its value, where no equitable relief is asked, or is necessary to entitle the trustee to enforce the cause of action given by the provision of the Bankruptcy Law (supra), is to be tried by a jury under section 968 of the Oode of Civil Procedure, or as an action in equity under section 969 of the Code of Civil Procedure. By the section of the Bankruptcy Law, above cited, the State courts have concurrent jurisdiction with the courts of the United States in an action to recover the property. But when an action is brought in the State court under this authority given by the Bankruptcy Law, the question as to its trial and the procedure in the action are to be determined by the law of the State, and it seems to me that in this State, under the provisions of the Code of Civil Procedure, an action to recover a sum of money only, where no equitable relief is asked, is an action within section 968 of the Code ,of Civil Procedure and that the issues of fact therein are triable by a jury.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Hatch and Laughlin, JJ., concurred; Van Brunt,P. J., and Patterson, J., dissented.

Patterson, J. (dissenting):

This action is brought by a trustee in bankruptcy to recover property of the bankrupt in the hands of the defendant, claiming that the delivery of the property was by way of a preference of the defendant, contrary to the provisions of section 60 of the Bankruptcy Act, and that the property was intended to be delivered as a preference and that the defendant had reasonable cause to believe that the bankrupt was insolvent at the time. The plaintiff demanded a return of the property, which the defendant refused. The allegations of the answer constitute denials. When, issue was joined, the case was put upon the Trial Term calendar and noticed for trial, but that was before the decision of this court in Houghton v. Stiner (92 App. Div. 171). When that decision appeared, the plaintiff’s attorney moved to have this cause transferred from the Trial Term calendar to the Special Term calendar, which motion was granted, and from the order entered thereon this appeal is taken.

The opinion of this court in the case cited covers the ground and is authority for the order made. It was followed by the court below. Its reasoning is in the direction of the doctrine that the trustee in bankruptcy must sue in equity.

The order should be affirmed.

Van Brunt, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  