
    (84 Hun, 361.)
    LIEBMANN et al. v. LIEBMANN BROS. CO. In re LAZERUS et al.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    Following Trust Fund—Identification.
    On an application to compel a receiver .to pay petitioner the proceeds of goods consigned by petitioner to the insolvent, an affidavit that the stock of goods turned over to the receiver was in part purchased with the pro- " ceeds of petitioner’s goods is insufficient, where it does not state the amount.
    Appeal from special term, Kings county.
    Petition by Lazerus, Bosenfeld & Lehmann for an order compelling the receivers appointed in an action by Louis Liebmann and Herman Liebmann against the Liebmann Bros. Company, a bankrupt corporation, organized under the laws of the state of Hew Jersey, to pay petitioners their claim against said corporation in full. The petition was denied, and petitioners appeal.
    Affirmed.
    Argued before DYKMAH, PBATT, and CULLEH, JJ.
    Horwitz & Hershfeld, for appellants.
    Johnson &Lamb (Jesse Johnson, of counsel), for respondents.
   CULLEN, J.

This is an appeal from an order of the special term denying an application of the appellants that the receivers of the defendant corporation be directed to pay the petitioners the amount due them from defendant on account of the proceeds of goods consigned to it by the petitioners. On the record presented to us it would not be profitable to follow the elaborate argument of the counsel for the petitioners as to their rights as consignors, or to discuss the legal principles affecting such right. The appellants moved on a petition which states, in the most general terms, that they are informed and believe that the receivers are in possession of moneys the proceeds of the sale of petitioners’ goods, and that the defendant mixed such moneys with its own, and that to the extent of petitioners’ claim the assets in the hands of the receiver have been increased by such moneys. The affidavits in reply put in issue these allegations, and show that the money turned over to the receivers was but a small sum, which was largely depleted by payment to another consignor. The goods of the petitioners seem in some instances to have been sold on credit, and the credits or claims therefor pledged by the defendant for loans obtained by it. What was the amount of such claims does not appear. The petitioners submitted in rebuttal an affidavit of the treasurer of the defendant that the stock of merchandise turned over to the receivers was in part purchased by the moneys received by the defendant from sales under its agreement with the petitioners, but what part is not stated. This affidavit would be justified if there had been such a purchase of goods to the amount of a dollar. On the papers and proofs before the special term, which are most meager and uncertain,—more noticeable for what they fail to show than for what they do show,—it is impossible for the court to determine or ascertain the facts of the case, except the amount of the debt of the petitioners, and the agreement under which the goods were consigned. The application was submitted to the court for determination on these papers. ¡No request for a reference or further proof seems to have been made. In this state of the proofs, we think that the application was properly denied. Conceding, for the argument, the contention of the petitioners of the right to follow the proceeds of their property to its fullest extent, it was on them affirmatively to trace such proceeds into the hands of the receivers. The proofs do not show this, but leave the subject in confusion and uncertainty. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.  