Gillott v. Redlich — 20 N.Y. St. Rep. 893

Majority

p. 893

William T. Gillott, Jr., as Assignee of Herman N. Smith, Resp’t, v. William F. Redlich et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Assignment for benefit of creditors—Fraudulent sale—Attachment—Rights of assignee.

An assignee is authorized by Laws 1358, chapter 314, to “ treat as void,” all transactions in fraud of creditors, and a fraudulent bill of sale is no bar to the rights of a subsequent assignee for the benefit of creditors, and on the vacation of a prior attachment after the assignment, the title passes to the assignee, and a subsequent seizure by the attaching creditor under valid process does not disturb such title.

2. Same—Evidence—Proof of fraud—Acts of assignee.

Fraud is not proved by evidence that the assignment was made with the express object of anticipating a new attachment. Evidence that a certain creditor assailed the attachment, or as to the act or neglect to act by the assignee since the assignment, is immaterial.

Appeal from a judgment entered on the report of a referee in favor of the plaintiffs, and against the defendant for the sum of $1,308.16 damages and costs, in an action for conversion, originally begun against the sheriff of Kings county.

p. 894

J. Homer Hildreth, for app’lts; Henry D. Hotchiciss, for resp’t.

Smith was a debtor of Redlich, he was also debtor to Austin, Nichols & Co., and also to Enyard & Bain. The first step in the complication was a fraudulent bill of sale 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 the 5th of August, 1886, Leffets, as such fraudulent vendee, was in possession of the property-, and the defendant Redlich, 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 12th of August, 1886, Redlich and Enyard and 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 xecover its value of the defendant as for an unlawful seizure. The Leffets’ bill of sale was not a bar to the assignee after the assignment was made. Spring v. Short, 90 N. Y., 538 ; Chapter 314, Laws of 1858; Wheeler v. Lawson, 103 N. Y., 40 ; 2 N. Y. State Rep., 391.

The legislative act says that the assignee may 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 exceptions based upon this assumption were 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 theassignee 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.