Hyperlawhypertext legal database Bloomingdale v. Seligman 22 Abb. N. Cas. 98

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Bloomingdale v. Seligman

22 Abb. N. Cas. 98 Court N.Y.C.P. English

Delivered by Bookstaver, J.

Contents

Majority

p. 98
BLOOMINGDALE v. SELIGMAN.
N. Y. Common Pleas, Special Term ;
December, 1888.

Headnote

1. Assignment for creditors ; effect of failwre to compl/y with statute.3 The provisions of L. 1888, c. 294—requiring every assignment far creditors to specifically state therein the residence and kind of business carried on by the debtor at the time of making the assignment, and the- place at which such business shall then be conducted, and, if such place be in a city, the street and number thereof; and if in a village or town, such apt designation as shall reasonably identify such debtor—are obligatory, and a non-compliance therewith, renders an assignment void.
'2. Same; application to partnership.] The fact that the statute is in the singular number does not render it inapplicable to a partnership.
.3. Sunday; act talcing effect on.] L. 1888, c. 294, is not rendered inoperative by going into effect on a Sunday, as the legislature has full power to regulate what shall be done or prohibited on that day.
Demurrer to complaint.
This was an action by Emanuel W. Bloomingdale, a judgment creditor, against Sigmund J. Seligman and others, to set aside an assignment for creditors as invalid on the ground that it failed to comply with the provisions of L. 1888, c. 294.
The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
The facts appear in the opinion.
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Ferdinand Kurzman, for the demurrer.
Solon P. Rothschild, opposed.
The provisions of the act of 1888 must be read in conjunction with the assignment .act of 1877 and amendatory acts. Being statutes upon the same subject, they must be considered as framed upon one system and presumptively governed by the same spirit and policy. They are in pari materia and are to be taken and construed as one law enacted at the same time (Patterson v. Winn, 11 Wheat. 380 , 385; U. S. v. Collin, 3 Blatch. 325 ; Hardmann v. Bowen, 39 N. Y. 196 ; Britton v. Lorenz, 45 Id. 51; Fairchild v. Gwynne, 16 Abb. Pr. 23 ). Comparing the section of the assignment act under consideration with the act in question (chap. 294, Laws of 1888) it will be seen tljat it requires the assignment to be “ duly acknowledged and recorded” in precisely the same language ; i. e., the act itself and the amendment employ identical language.
Chapter 294 of the laws of 1888 requires that the assignment “ shall specifically state therein the residence- and the kind of business carried on by such debtor at the time of making the assignment, and the place at which such business was then being conducted, and, if such place be in a city, the street and number thereof, and if in a village or town such apt designation as shall reasonably identify such debtor.” The act in question is mandatory (Hardman v. Bowen, supra; Britton v. Lorenz supra; Fairchild v. Gwynne, supra; Renne v. Bean, 24 Hun, 123 ). The ■legislative intent must be gathered from the enactment itself, and any attempt to get at a legislative meaning different. from that therein contained, would tend to assume the shape of arbitrary discretion. From the nature of things it would be illusory and interpretation then, would be mere ■conjecture: cases of ambiguity or conflict only should be •subjected to such operation (Sedgw. on Stat. Const. Prom. Notes [2d ed.] 328 ; Niagara v. People, 7 Hill, 504 , 511; Jackson v. Lewis, 17 John. 475 ; 1 Kent's Com. 468). Tbe
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doctrine is well established that, in all cases, where the-authority to proceed is prescribed by statute, the mode of proceeding is mandatory, and must be strictly complied, with, or the proceeding will be utterly void (Corwin v. Merritt, 3 Barb. 341 ; Harrington v. People, 6 Id. 607 Bloom v. Burdick, 1 Hill, 130 ; People v. Schermerhorn, 19 Barb.540 ; Exp. Comm. Council of Albany, 3 Cow. 358 Barnard v. Viele, 21 Wend. 89 ; Brisbane v. Peabody, 3 How. Pr. 109 ; Rogers v. Murray, 3 Paige, 390 ; Atkins v. Kinnan, 20 Wend. 241 , 249 ; Sherwood v. Reade, 7 Hill, 431 ;. Sharp v. Speir, 4 Id. 76 ; Morse v. Williamson, 35 Barb. 472 ; Sherman v. Dodge, 6 John. Ch. 107; Denning v. Smith, 3 Id. 331; Cohoes Co. v. Goss, 13 Barb. 137 ; Hubbell v. Weldon, Lalor, 139). There is no analogy between the provisions of the statute of 1884, relating to preferences for wages due, and chap. 294Vf 1888. That statute may be observed, and its intent carried into effect, without a statement thereof in the deed of assignment.
The act of 1884 is said to operate as a condition aided by the law (Richardson v. Thurber ( 104 N. Y. 606 ; Johnston v. Kelly, 43 Hun, 379 ). The claim that the amendment is in the singular number and does not apply to partnerships, is untenable (See section 27 of the General Assignment Act of 1877). Chapter 294 of the Laws of 1888-was passed and approved May 15, 1888, and went into effect as specified therein, to wit: on the first day of July, 1888. The fact that the date specified happened on a Sunday does not invalidate the enactment (Hadley v. Musselman, 104 Ind. 459 ; Merritt v. Earle, 29 N. Y. 115 , 120 ; Boynton v. Page, 13 Wend. 425 ; Watts v. Van Ness, 1 Hill, 76 ; Maxson v. Annas, 1 Den. 204 ; Merritt v. Earle, 29 N. Y. 115 , 122; Rex v. Brotherton, 2 Strange, 702). The cases of Thrasher v. Bentley ( 59 N. Y. 649 ), etc., cited by the assignee, merely hold that an assignment is not invalidated by non-compliance with requirements which may be performed subsequent to the making thereof. When, however, an- assignment is void in its inception, it cannot be
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rendered valid by subsequent act (Averill v. Loucks, 6 Barb. 471 ). When the intention of an act can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy (People v. N. Y. C. R. R. Co., 13 N. Y. 78 ; Briggs v. Georgia, 15 Vt. 61 , 72 ; Sedgw. on Stat. Const, at p. 324. See also p. 326). The facts required to be stated in the assignment by the act under consideration are a part of its substance and essence and have no relation to its form (Marchant v. Langworthy, 6 Hill, 646 ; Striker v. Kelly, 7 Id. 9 ; Rex v. Locksdale, 1 Burr. 447).

The complaint, after stating facts sufficient to sustain a creditor’s action, provided the assignment is void, alleges that the assignment was and is unlawful, fraudulent and void, and that it fails to comply with the provisions of chap. 294 of the Laws of 1888; that the said assignment does not state therein the residence or kind of business carried on by the debtors at the time of the .making of the assignment, or the place or the street or number at which said business was then conducted, and these allegations must be taken as true for the purposes of this demurrer.

The only question, therefore, raised by the demurrer, is whether such omission renders the assignment void.

Chapter 294 of the Laws of 1888, which went into eifect ■on the first day of July, 1888, amended section 2 of the assignment act of 1877, by requiring every assignment to “ specifically state therein the residence and kind of business carried on by such debtor at the time of making the assignment, and the place at which such business shall then be conducted, and, if such place be in a city, the street and number thereof; and, if in a village or town, such apt designation as shall reasonably identify such debtor.”

The same section of the assignment act requires the assignment to be “ duly acknowledged and recorded in precisely the same language used in the amendment respecting

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the debtor’s residence, etc.” And it lias been held that the-total omission of an acknowledgment rendered the assignment void as to attaching creditors (Hardmann v. Bowen, 39 N. Y. 196 ). In that case the court says: “ If the Legislature were to enact a statute expressly declaring that every conveyance- of real estate shall be written or printed on. parchment, it cannot be doubted that a deed written on common paper would not answer. Our-present statute says-that every grant, in fee or of a freehold estate, shall be subscribed and sealed by the grantor (1 R. S. 378, § 137). There-are no negative words and no declarative words that the-deed shall be inoperative if not sealed, and yet it has never-been doubted that the seal is essential to give it validity.

, The fundamental mistake with the appellant’s argument is in treating this as merely an affirmative declaratory statute.. It is no such thing. It introduces a new law in regard to-assignments. It. requires every assignment, whether of real-, or personal property, to be acknowledged before an officer-authorized to take acknowledgments before delivery, and the certificate of acknowledgment to be endorsed upon the assignment. The language is peremptory. Every assignment, etc., shall be acknowledged before delivery. This, as-I have already said, introduces a new rule of law in regard, to assignments. It is a maxim of the law that if an affirmative statute, which is introductive of a new law,, direct a thing to be done in a certain manner, that shall not,, even' though there are no negative words, be done in any other manner. It is very clear to my mind, that a negative-of the right to make an assignment in any other manner- is-implied in the very language of the statute, for when the. statute declares in terms, that every assignment shall be. acknowledged before delivery, it, by necessary implication,, provides that no assignment shall be delivered without acknowledgment. It clearly denies and withholds the right, which before existed, to dispense with the acknowledgment.”

The same doctrine was announced in Britton v. Lorenz

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( 45 N. Y. 51[1] ) and Fairchild v. Gwynne ( 16 Abb. Pr. 23[2] ), So, too, it has been held that the oral assent of the assignee to act is not sufficient, but that .the assignment must have thereon . the assent of the assignee, duly subscribed and acknowledged by him, to render it effectual (Rennie v. Bean, 24 Hun, 123 ).

In Warner v. Jaffray ( 96 N. Y. 253[3] ), it was again held that the assignment must be acknowledged and the assignee must assent thereto, in writing, although that case held that what else the statute requires may be done afterwards, and that such requirements are directory; but this was decided before the amendment now under consideration was passed, and as the Legislature has seen fit to require the residence of the debtor, etc., to be inserted in precisely the same language employed in relation to the acknowledgment of the debtor and the assent of the assignee, I do not see why it is not equally obligatory.

This provision' differs from that relating to preferences for wages, where it has been held such preference need not be in the instrument itself, but that every assignment had written in it by operation of the statute such preference, and the assignee Avas bound to obey it in distributing the money realized from the estate, Avhether such provision was contained in the instrument or not.§

I think the claim that the amendment is in the singular number and does not apply to partnerships, is untenable. Section 27 of the General Assignment Act provides: “ When any singular matter, party or person, is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females

* Aff’g 3 Daly, 23 .

† † Rev’g 14 Abb. Pr. 121 .

‡ ‡ Aff’g 30 Hun, 326 . § But see, however, Smith v. Hartwell, 55 Super. Ct. (J. & S.) 325, where an assignment for creditors, which specified that a portion of the assignor’s employees should be preferred, was held void for the failure, to specify the rest of the employees.

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as well as males, and bodies corporate as well as individuals, shall be deemed to be included, unless otherwise specially provided, or unless there be something repugnant to such ■construction,” and I can see nothing in the amendment making its application repugnant to copartnerships; it is ■quite as easy to state the residence of each member as of a single debtor, and so of the place of business. Nor is the fact that the entire amendment is in the singular number of any importance, for it is well settled that a law must be read as a whole, and as if every part had been adopted at the same time, and, as one law, and effect must be given to every part of it—each clause explained and qualified by every other part. Nor do I consider the fact that the Legislature directed that the act was to go into effect July 1, 1888, which happened to be a Sunday, rendered it inoperative. It required nothing to be done on that day. It was simply to be qperative on and after that day. Besides, the Legislature has full police power to regulate what shall be done on that day and what shall be prohibited.

The demurrer must, therefore, be overruled, with costs.

It has been claimed that, in an action in the supreme court, a different result has been arrived at, but I do not know what the allegations in the complaint were in that case, nor have I been able to ascertain that any reasons were given for the decision in that case. It may be that it appeared in that case, as was asserted in the defendant’s brief in this, that the assignment did, in fact, contain the place of business and the kind of business carried on by the debtors at the time of making the assignment, which, I confess, would raise a different question from the one before me, where, by demurring, the defendants admit there was an entire failure to comply with the statute. If the assignment does contain a partial compliance with the statute, the defendants should have leave to answer within ten days on payment' of the costs of this demurrer.

.Judgment accordingly.

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