(dissenting). I dissent. The prevailing opinion is based solely upon the fact that the plaintiff has failed to allege that it was a creditor at the time of the transfer in bulk. The cases relied upon are merely to the effect that a contingent creditor is not a creditor within the purview of the Sales in Bulk Act or the Bulk Sales Act (Pers. Prop. Law, § 44, as amd. by Laws of 1914, chap. 507). The plaintiff here is entitled to every reasonable and fair intendment from the face of the complaint. Giving it such, I am of the opinion that the complaint sufficiently alleges that it was a creditor at the time of the transfer. Its action at law was admittedly pending at the time of such transfer and thereafter was successfully prosecuted to judgment in its favor. In an action at law the rights of the parties are determinable as of the *251date of the commencement of the action. The judgment in plaintiff’s favor, therefore, leads irresistibly to the conclusion that at the time of the commencement of the action and up to the time of judgment, it was a full, and not a contingent creditor. A disputed claim is not necessarily a contingent claim. Had it been a contingent creditor its action would have been premature and not maintainable.
I, therefore, vote to affirm the order in all respects.
Order reversed, with ten dollars costs and disbursements, and motion of the plaintiff denied, and the defendants’ motion for judgment dismissing the second cause of action granted, with leave to the plaintiff to serve an amended complaint within ten days from service of order upon payment of said costs.