Kitteredge v. Van Tassell — 10 N.Y.S. 92

Majority

p. 92

Kitteredge et al. v. Van Tassell.

(Supreme Court, General Term, Second Department,

May 12, 1890.)

Headnote

Assignment fob Benefit of Cbeditoes—Preferences.

A husband who makes an assignment for the benefit of creditors may prefer a debt legally due to his wife.

Appeal from special term, Dutchess county.

Action by Charles M. Kitteredge and Jennie Davis, as assignees of James M. Davis, against J. Wesley Van Tassell, sheriff of Dutchess county. There was judgment for defendant, and plaintiff appeals.

Argued before Dykman and Pratt, JJ.

Freeman & Green, for appellant. E. E. Eustis, for respondents.

This is an action against the sheriff for the seizure o"f a stock of goods. The plaintiffs are the general assignees of James M. Davis, and were in possession of the property in question when the sheriff seized the same under a warrant of attachment issued against the property of the plaintiffs’ assignor. The cause was tried before a judge without a jury, and he found all the Tacts against the defendant, and rendered a judgment in favor of the plaintiffs. The conclusions of law reached by the trial judge follow legitimately from the facts found, which were amply justified by the evidence introduced upon the trial. The principal assault upon the assignment was directed to the preference of the debt of the wife of the assignor, but the proof showed her claim to be such an obligation as the husband might legally incur, and, being such, it might be the subject of preference in his assignment for the benefit of creditors. We coincide with the decision of the trial judge, and find no error in the record. The judgment should be affirmed, with costs.