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Gillott v. Redlich

3 N.Y.S. 325 Court N.Y. Sup. Ct. Decision date 1888-12-13 English

Delivered by Barnard, P. J.

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p. 325
Gillott v. Redlich et al.
(Supreme Court, General Term, Second Department.
December 13,1888.)

Headnote

1. Assignment fob Benefit of Creditors—Rights of Assignee—Fraudulent Sale —Attachment.
Under Laws S'. Y. 1858, e. 314, authorizing assignees to “treat as void” all transfers in fraud of creditors, a fraudulent bill of sale of the debtor’s property is no bar to the rights of a subsequent assignee for benefit of creditors, and, on a prior attachment being vacated after the assignment, the title passes to the assignee, and is not disturbed by a subsequent seizure by the attaching creditor under valid process.
H. Same—Proof of Fraud.
Evidence that the assignment was made with the express object of anticipating a new attachment does not prove fraud.
S. Same—Attachment—Acts of Assignee.
Evidence that a particular creditor assailed the attachment, or as to the act, or neglect to act, by the assignee since the assignment, is immaterial.
Appeal from special term, Kings county.
Action for the conversion of personal property by William T. Gillott, Jr., assignee of Herman FT. Smith, originally brought against Charles B. Farley, sheriff of Kings county. Said original defendant appeared by attorney, and ■demanded a copy of the complaint, which was duly served on him, and thereafter William F. Eedlich, Isaac E. Enyard, David Bain, Frederick Blohm, and Henry M. Bischoff, as indemnitors of the defendant sheriff in certain prior attachments, were substituted in his place as defendants. Judgment was rendered for plaintiff, and defendants appeal. Laws FT. Y. 1858, c. 314, § 1, provides “ that any * * * assignee * * * may, for the benefit of creditors or others interested in the estate, * * * disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor, ” etc.
Argued before Barnard, P. J., and Dyiiman and Pratt, JJ.
J. Homer Hildreth, for appellants. Henry D. Hotohkiss, for respondent.

Smith was a debtor of Eedlich. He was also debtor to Austin FTichols & Co., and also to Enyard & Bain. The first step in the complication was a fraudulent bill of ¿ale of the debtor’s property to one Leffets. This was given by Smith to him prior to August 3,1886, and about that date. On th.e 5th of August, 1886, Leffets, as such fraudulent vendee, was in possession of the property, and the defendant Eedlich got an attachment against the debtor, and seized the property in possession of Leffets. This attachment was vacated on the 10th of August, 1886. On the 9th of August, 1886, the debtor made a general assignment for the benefit of his creditors without preference. This assignment was recorded on August 11, 1886, and on the

p. 326
12th of August, 1886, Redlich and Enyard & Bain got attachments against. Smith, and thereunder seized the property in question, and sold it. The assignee brings this action, and the question is as to the right of the plaintiff to-recover its value of the defendants as for an unlawful seizure. The Leffetsbill of sale was not a bar to the assignee after, the assignment was made. Spring v. Short, 90 N. Y. 538 ; chapter 314, Laws 1858; Wheeler v. Lawson, 103 N. Y. 40 , 8 N. E. Rep. 360 . The legislative act says that the assigneemay treat the fraudulent title as “void.” When the first attachment, therefore, was vacated, the title became the title of the assignee. A subsequent seizure under valid process affords no protection. Wehle v. Butler, 61 N. Y. 245 .

It was no proof of fraud to show that the assignment was made with the express object of anticipating a new levy by attachment, and the exception based upon this assumption was not well taken. Nor was it material to-show that any particular creditor assailed the attachment, nor was it material as to the act or neglect to act by the assignee since the assignment. They might show a bad trustee, but could not destroy the trust. In McConnell v. Sherwood, 84 N. Y. 522 , the right to compromise, “if it would be advantageous,” was written in the assignment, and this was held to render the assignment void. The evidence fails to show any fraudulent intent as matter of fact. The evidence is voluminous, but nothing whatever appears in it to-invalidate the assignment for fraud. It is equal as to all, and no debt is impeached or questioned.

The judgment should be affirmed, with costs. All concur.

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