This is a suit by a trustee in bankruptcy to set aside a chattel mortgage and bill of sale as fraudulent and void, and to enjoin the defendant from interfering with the property described in said instruments or claiming any title thereto, at a sale thereof, by the plaintiff.
, A State court is not debarred from jurisdiction in such an action by the provisions of the Bankruptcy Act of 1898. (30 U. S. Stat. at Large, 544; Bardes v. Hawarden Bank, 178 U. S. 524.)
The objection to the orders under review is that they practically dispose of the litigation in favor of the plaintiff, before trial.
Theré is no answer in the appeal book, but-there is an affidavit of the defendant, Oonrad Muller, which puts at issue the allegations ■of the complaint which the plaintiff must establish to entitle him to the judgment which he asks.
The moving papers make out. a proper case for the appointment of a receiver pendente life to take and preserve the property until final judgment.
There was no necessity or occasion, however, for ordering a sale prior to the determination of the controversy, inasmuch as the prop, erty was not of a perishable character, (See Brush v. Jay, 113 N. Y. 482.)
It is not a justification for taking away and selling a man’s possessions under such circumstances to tell him that he may assert his claim against the proceeds just as well as against the property.
The order appointing the receiver should be modified by striking out the provision authorizing a sale and by restricting the powers of the receiver to the preservation of the property pending the action; as thus modified, it should be affirmed, without costs.
*145As the injunction relates solely to the proposed sale, and we think there should be no sale before judgment, the injunction ■should be dissolved, with costs to the appellant.
The appeal from the order refusing to modify the injunction should be dismissed, without costs.
Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.
Order appointing receiver modified, and as modified affirmed, without costs. Injunction dissolved, with ten dollars costs and disbursements to the appellant. Appeal from order refusing to modify injunction dismissed, without costs.