This action is brought by a trustee in bankruptcy to recover property of the bankrupt in the hands of the defendant, claiming that *431the 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.