Wilson Bros. Wooden Ware & Toy Co. v. Daggett — 1 N.Y. St. Rep. 297

Majority

p. 297

Wilson Brothers Wooden Ware and Toy Co. v. Daggett.

(City Court of New York,

Generral Term,

Filed May 28, 1886.)

Headnote

Supplementary proceedings—When judgment creditor estopped prom:

IMPEACHING ASSIGNMENT.

A judgment creditor who has proved his claim against the judgment debtor in general assignment proceedings, and availed himself of the provisions of the general assignment act, has practically elected to join in aid of the purposes of the assignment and cannot in supplementary proceedings go behind the assignment, for it is valid so far as he is concerned. Creditors receiving a benefit under an assignment become parties to it, and are estopped from afterwards impeaching it.

Appeal from an order made at special term declining to limit an examination in supplementary proceedings to the discovery of property of the defendant, acquired since his general assignment for the benefit of creditors, filed and recorded October 10, 1885.

JET. P. Starbuck, for appellant.

A. P. Hilton, for respondent.

The judgment creditor herein, in pursuance of notice to creditors, came in and proved his claim against the judgment debtor in the general assignment proceedings, and having availed himself of the provisions of

p. 298

the general assignment act, he has elected to join in aid of the purpose of the assignment, which is the bringing in and distributing of the assigned property, according to the terms of the assignment. Matter of Holbrook, 99 N. Y., 539 , 546. Creditors have an election as to which course they will pursue. They cannot pursue both. Creditors cannot in one-moment take steps in recognition of the assignment and in the line of its strict enforcement according to its terms and seek to hold the assignee to its performance, and in the-next repudiate it as fraudulent and void. Cavanagh v. Morrow, 67 How. Pr., 241 , 245; Rapalee v. Stewart, 27 N. Y., 310 , 313.

It is an elementary rule that creditors receiving a benefit-■under an assignment become parties to it, and are estopped from afterwards impeaching it. Adlum v. Yard, 1 Rawle, 163 ; Burrows v. Alter, 7 Mo., 424 ; Rapelee v. Sewart, 27 N. Y., 311 ; Lanahan v. Latrobe, 7 Md., 268 ; Richards v. White,. 7 Minn., 345 ; Scott v. Edes, 3 id., 377 ; Valentine v. Decker, 43 Md., 583 ; Doub v. Barnes, 1 Md. Ch., 127 ; Therasson v. Hickok, 37 Vt., 454 . Creditors having once made an election are concluded by it, Rodermund v. Cohen ( 46 N. Y., 354 ), and cannot revoke it. Cavanagh v. Morrow (supra); Moller v. Tuska, 87 N. Y., 166 .

The plaintiff herein is barred from attacking the assignment. It is good so far as it is concerned, and whatever , property the debtor had has gone to the assignee to be administered according to his trust. The judgment creditor must therefore be limited to after acquired property, and the order dechning to so limit the examination must be-reversed, with costs.

Hyatt and Ehrlich, JJ., concurred.