#### J. Alfred Reichardt, Trustee in Bankruptcy, Etc., Appellant, *v.*The American Platinum Works of Newark, New Jersey, Substituted Defendant, Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Appeal — Review — Scope of review — Questions x&ised for the first time on appeal — Municipal Court of the city of New York — Jurisdiction — Legal as distinguished from equitable actions — Foreign corporations — Effect of appearance.

Where plaintiff, as trustee in bankruptcy, sued to recover the purchase price of goods sold by the bankrupt before his failure; ■and the original defendants, showing upon motion that the same ■sum was claimed by the present defendant under an alleged assignment from the bankrupt before bankruptcy, were permitted to pay the amount into court and the present defendant was substituted' in their place; and where the plaintiff claimed in his pleadings that the assignment to the present defendant was made with intent to- hinder, delay and defraud the plaintiff and that defendant had reasonable cause to believe the bankrupt intended an unlawful •preference; and the plaintiff was defeated on the merits, held:

*651That plaintiff may not, for the first time on this appeal, impeach his own suit on the ground that it is a suit in equity of which the court had not jurisdiction and, held, further, that this is not a suit in equity.

And, where the plaintiff also objects that the defendant is a foreign corporation and does not appear to have an office in the city of New York, held:

That it does not lie in plaintiff’s mouth to raise this question for the first time on appeal and, further, that there was no evidence that defendant is a foreign corporation; but, even if it so appeared, the defendant conferred jurisdiction by appearing and going to trial without objection.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.

Norbert Blank, for appellant.

Paul C. Schnitzler, for respondent.

Scott, J.

The plaintiff as trustee in bankruptcy of August W. Schmidt sued the members of the firm of Hastings & Miller for the sum of $100, the purchase price of goods ■sold by the bankrupt before his failure. These original defendants admitted the indebtedness, but showed upon motion that the same sum was claimed by the American Platinum Works of Newark under an assignment of the claim made by the bankrupt before bankruptcy. They were thereupon permitted by order to pay the amount into court, and the alleged assignor was substituted. Such an order of interpleader is authorized by section 187 of the Municipal Court Act, and we can find no error in its issuance in the present case. The plaintiff thereupon served a supplemental complaint, alleging that if an assignment of the claim had been made to the substituted defendant, it had been made with the intent to hinder, delay, and defraud the plaintiff, and that the substituted defendant had reasonable cause to believe that the bankrupt, by the assignment, intended to ■give to said substituted defendant an unlawful preference ■over all his other creditors. The substituted defendant thereupon filed a composite pleading consisting in part of a demurrer upon three several grounds, and in part an answer *652alleging the transfer and denying all plaintiff’s allegations-tending to show that the transfer was illegal and void. No-action appears to have' been taken on the demurrer, and the' parties went to trial on the supplemental complaint and the-answer. No objection was made by plaintiff to going on. with the trial on any ground. The substituted defendant did! object to the jurisdiction of the court upon the ground that the issues presented a question of equity jurisdiction, but" that objection is not now insisted upon by it. The plaintiff,, however, having been defeated on the merits, now taises for the first time on appeal the objection that so far as he sought to avoid the preference the action was one in equity of which the Municipal Court has no jurisdiction, and also upon, the ground that the substituted defendant is a foreign corporation and it does not appear that it has an office in the city of New York. In the first place there is no evidence that, the substituted defendant is a foreign corporation, Miller’s-affidavit on the interpleader motion not being evidence in., the case, and even if it did so appear the defendant conferred upon the court jurisdiction over its person by appearing and going to trial without objection on this score. It does not lie in plaintiff’s mouth to raise this objection for the first time on appeal. Nor is the objection to the jurisdiction of - the court on the first ground well taken. If the-substituted defendant had actually reduced to possession the-property of the bankrupt, and the trustee in bankruptcy was-seeking to regain possession thereof it may be that he would be obliged to sue in equity, although this is not entirely clear. Houghton v. Stiner, 92 App. Div. 171. That, however, is not, the case presented here. The plaintiff is suing to recover a-sum of money which never passed to the substituted defendant. The plaintiff makes no claim against the substituted defendant. He merely attempts to interpose a defense-against the efforts of the substituted defendant to recover the same money. The plaintiff having brought the case on for trial, ought not now, because he has been defeated, be-permitted to obtain a reversal of the judgment against him on the ground, here taken for the first time, that the court had no jurisdiction of his action, and as a matter of law his con*653tention in this behalf is unsound. On the merits the action was rightly decided. There was not the slightest evi•dence to show that the substituted defendant when it accepted the transfer had reasonable or any cause to believe that it was intended thereby to give a preference, nor did it appear that the effect of the enforcement of the transfer would be to enable one of the bankrupt’s creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.

The judgment,and order appealed from must, therefore, Tbe affirmed, with costs.

Dugro and MagLean, JJ., concur.

Judgment and order affirmed, with costs.