Ryder v. Duffy — 26 N.Y.S. 369

Majority

p. 369

(73 Hun, 605.)

RYDER v. DUFFY, Sheriff.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Assignment for Benefit of Creditors—Possession by Assignee.

Immediately after the execution of an assignment for benefit of creditors, possession was taken by the assignee# the property was advertised for sale at auction, and in the interval, of eight or ten days, the assignee, assisted by the assignor, sold some of the property at private sale, but the assignor exercised no centre I whatever over the property. Held, that immediate possession of the assigned property was taken and held by the assignee.

p. 370

_ Appeal from circuit court. Westchester county.

Action by Edgar L. Ryder, as assignee for the benefit of creditors of Edward Nolan, against John Duffy, sheriff of Westchester county, to recover goods seized by defendant under an attachment in favor of John W. Matthews and others. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Wm. Romer, (Nelson H. Baker, of counsel,) for appellant.

Smith Lent and Charles Wesley, for respondent.

Edward Nolan, on the 6th of July, 1892, made a general assignment to the plaintiff. The assignor was a- grocer, and his stock of groceries passed by the assignment. There was preferred in the assignment a debt of $1,000 to James O. Driscoll for money loaned by Driscoll to the assignor, as was stated in the assignment. On the 12th of July, 1892, the sheriff, by virtue of an attachment against the property of the assignor, took the property in question from the possession of the assignee. The sheriff justifies the seizure by an averment that the assignment was made by Nolan with intent to defraud his creditors, and that the property was the property of the assignor at the time of the seizure. Upon the trial the assignment was proven, and the fact that immediate possession of the assigned property was taken by the assignee; that the property was immediately advertised for sale at public auction. In the interval, some eight or ten days, the assignee sold at private sale, and the assignor aided in putting up goods sold, at the request of the assignee, for which the assignee received the purchase price. The assignor was in and about the store up to the sale at public auction, but had no control whatever. There is therefore a complete failure of proof tending to show that an immediate possession was not taken and held by the assignee. The assignor’s wife is a sister of Driscoll. Before her marriage, she was her brother’s housekeeper, and he owed her $1,000 for that service. He sent her a check for this sum, which the sister handed over to her husband. Driscoll intended this $1,000 as a gift to the assignor’s wife, but she never so intended, and never even knew of his intention. As the case stands, Driscoll owed his sister $1,000 for services. He sent a check, which was received by the assignor. He intended this to be a present to the wife, but she knew nothing about it. Driscoll still owes his debt to his sister, and the assignor has never obtained any title to the $1,000. The preference of the debt in the assignment is therefore just and legal, and the judgment should be affirmed, with costs. All concur.