Richards v. Village of Union, Broome Co. — 16 N.Y. St. Rep. 58

Majority

p. 58

Dan S. Richards et al., as Assignees of Martin C. Rockwell and Melvin C. Rockwell, Individually, and of Martin C. Rockwell & Company, for the Benefit of Creditors, v. The Village of Union, Broome Co., N. Y.

(Supreme Court, General Term, Fourth

Department, Filed April, 1888.)

Headnote

1. Assessment—Counter-claim—When defendant entitled to set off DEBT DUE BY INSOLVENT ASSIGNOR AGAINST ASSIGNEE.

When the plaintiffs were appointed assignees in March, 1885, they re

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ceived from Martin C. Rockwell as one of the assets of the trust property that came to their hands, a draft or order executed by the defendant's officers for $319.71. By the terms of that order it was not due and payable until June 1, 1885, and bore interest until that date by its terms. At the time of the failure of the company for which plaintiff's are assignees^ there was on deposit with them certain money of the defendant deposited in the name of the treasurer as such, $221.17. Held, that at the time of the_ assignment, the defendant was not entitled to off-set or counter-claim against said draft the balance of money due it of $221.17.

2. Same—Right of assignor for benefit of creditors.

By the transfer of the order to the plaintiffs before the same became due, they became the legal owners thereof and were entitled to recover $319.71 with interest.

Controversy submitted under section 1279 of the Code. Plaintiffs became assignees for the benefit of creditors in March, 1885.

Prior thereto Martin C. Rockwell & Company were private bankers at the village of Union.

The firm was composed of Martin 0. Rockwell of Union, and Melvin C. Rockwell of Binghamton, and was carrying-on the business of banking.

Between July 1884, and February 1885, T. P. Knapp was treasurer of the village of Union; and between the dates mentioned, deposited money belonging to the village with Rockwell & Company to the amount of $848.18, to the credit of “ T. P, Knapp, treasurer of the village of Union, N. Y.,” payable on demand; and between said dates drew from said account for village purposes $627.01, leaving a balance of $221.17, in said bank at the time of the assignment.

Martin C. Rockwell in his individual name carried on an extensive business in manufacturing and shipping lumber, buying, pressing and shipping hay, and buying and shipping grain and potatoes.

On December 4, 1884, the village in payment for plank purchased by said village of Martin C. Rockwell individually, duly issued and delivered to Martin 0. Rockwell its instrument as follows:

“No. 353.

Village of Union, N. Y., December 4, 1884.

‘ ‘ Thos. P. Knapp, Treasurer of the Village of Union, N. Y., pay to M. C. Rockwell or order, Three Hundred and Nineteen and 71-100 Dollars, June 1, 1885, with use. Countersigned, R. PARK, Village Cleric,

M. C. Rockwell, President. $319.71-100, H. W. F.”

The instrument was delivered to Martin C. Rockwell, and was held by him in his individual name at the time of the assignment, and passed by his assignment to the plaintiffs as assignees.

In September, 1885, the assignees first presented the in

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strument to the treasurer of the village, and demanded payment. The treasurer refused to pay the whole amount called for by the assignment, “but offered to pay the balance thereof, after deducting the $221.17 so left on deposit, which offer the assignees declined. The defendant, a short time thereafter, and on or about October 1, 1885, tendered such balance to the plaintiffs. No demand was made for the said $221.17 balance on deposit, or refusal to pay the same made prior to the assignment; but after the assignment, and at or about the time of the demand by plaintiffs, in the month of September, 1885, such demand therefor was first made by said treasurer upon said assignees, who declined to pay the money so demanded.’’

Chapman & Lyon, for pl’ffs; Radcliffe Park, for def’ts.

When the plaintiffs were appointed assignees in March, 1885, they received from Martin C. Rockwell, as one of the assets of the trust property that came to their hands, the draft or order executed by the defendant’s officers for §319.71. By the terms of that order, it was not due and payable until June 1, 1885, and it bore interest until that date by its terms. At the time of the assignment, .the defendant was not. entitled to off-set or counter-claim against said draft, the balance of money due it of $221.17. Before the order came due, the defendant had notice of its assignment to plaintiffs. If the defendant on the day before the assignment or the day after the assignment, had commenced the action to recover the balance due its treasurer, the order in question would not have been a legal off-set or counter-claim against the balance due to the defendant. Martin v. Kunzmuller, 37. N. Y., 396; Code Civ. Pro., § 1909. By the transfer of the order to the plaintiffs before the same became due, they became the legal owners thereof, clothed with all the rights of assignees before: maturity of the instrument, Hunger v. Albany City Nat. Bank, 85. N. Y., 580. We think judgment should be ordered for the plaintiffs for $319.71, with interest from December 4, 1884. The submission provides that the judgment shall be “ without cost to either party against the other, but the parties here are to share equally the expense of printing the case on this submission.” Judgment will, therefore, be ordered for the plaintiffs, for the sum already stated with one-half the expense of printing the case on submission.

Judgment is ordered accordingly, for the plaintiffs.

Follett, J., and Martin, J., concur.