Elsworth v. Caldwell — 48 N.Y. 680

Majority

p. 680

Edward Elsworth, Respondent, v. George Caldwell et al., Appellants.

Headnote

A petitioning creditor under the two-thirds act, who adds to his signature the declaration of release required by said act (2 R. S., 36, § 11), thereby only transfers to the assignee any and every lien or security upon the estate and property of the debtor, not a lien or security upon the property of a third person. When, therefore, such creditor has a joint judgment against two, the signing of the petition of one does not transfer to the assignee his claim against or lien upon the property of the other. ‘ ■

(Argued January 2, 1872;

decided May term, 1872.)

This was a motion for leave to issue an execution upon the judgment in this action. It was opposed upon the ground that plaintiff had signed ^ petition for the discharge of the defendant, W. Caldwell, under the two-thirds act, adding to his signature the declaration of release required by said act (2 R. S., 36, § 11); that assignees were duly appointed and said defendant discharged, and that the judgment herein was rendered by virtue of the assignment sold and assigned by the assignees.

The motion was denied at Special Term. Upon appeal, the General Term so modified the order as to give plaintiff leave to issue execution against the property of George Caldwell.

p. 681

Ira I). Warren for the appellants.

Wm. A. Ooursen for the respondent.

Lott, Oh. 0., reads for reversal; Hunt and Gray, CO., read for affirmance.

For affirmance: Hunt, Gray and Earl. For reversal: Lott, Oh. 0.; Leonard, 0., not voting.

Order affirmed, with costs.