Thompson v. Fry — 21 N.Y. St. Rep. 95

Majority

p. 95

Addison Thompson, Assignee of La Belle Glass Company, Resp’t, v. George W. Fry, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1 Assignment—When cbeditob estopped from denting validity of.

The La Belle Glass Co., an Ohio corporation, sold goods to various firms in New York city on credit, and while these firms were indebted to it, made a voluntary general assignment of all its property in trust according to the Laws of Ohio applicable thereto. The defendant made proof of his claim as a creditor of the company, and delivered it to the assignee. He subsequently brought an action against the company in New York, and obtained a warrant of attachment against their property, and a levy

p. 96

was made upon the various claims assigned. Meld, that the defendant, by delivering proof of his claim to the assignee, accepted the instrument of assignment and barred himself from disputing its validity, or from taking any action to defeat its purposes.

3. Same—Superior claim of assignee.

Where the assignment is not made under an insolvent law of the state where the owner resides, it transfers all the personal property belonging to the assignor wherever situate, and gives to the assignee a title superior to that of any subsequent attaching creditor. Eelstadt v. Seillv, 55 How, Pr., 373 , followed.

Case agreed upon and submitted under the provisions of the Code relating to that mode of procedure.

Douglass & Minton, for pl’ff and resp’t; William H. Swan, for def’ts and app’lts.

La Belle Glass Company was a corporation created under the Laws of Ohio, having its office and immediate place of business at Bridgeport, Belmont county, in that state.

The company sold goods upon credit to various persons and firms doing business in the city of New York, and while these persons were indebted to it the company made a voluntary general assignment of all its property to the plaintiff in trust to proceed according to the statutes of Ohio, appliciable thereto in the collection and distribution of the corpus of the trust. The defendant was and still is a resident of Pennsylvania, having in this city, however, a place for the transaction of business in person. He received notice of the assignment, and on or about April 11th made an affidavit with a proof of his claim as a creditor of the company, and delivered it to the assignee. He subse- , quently, and on, or about the 21st of April, 1888, brought an action against the company upon a claim in the city court of this city, and obtained a warrant of attachment against the property of the company, which was duly issued to the sheriff of this county, and by him was duly served upon each of the debtors of the company, and a levy made upon the several claims assigned.

It also appears that the defendant obtained judgment against the company, issued an execution against the attached property, and that the judgment remains unsatisfied.

The controversy between the parties is as to whether at the time of the levy of the attachment upon the claims mentioned they had been effectually transferred to the plaintiff, and were, therefore, not subject to levy, under the attachment. Whatever may be the legal status of the other creditors who have not availed themselves in any mode of the assignment or the benefits to be derived therefrom, the defendant, by delivering proof of his claim to the

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assignee, has in law accepted the instrument and barred himself from disputing the validity of it, or from taking any action for defeating its purpose as a transfer of all the property of the assignor. Cavanagh v. Morrow, 67 How. Pr. Rep., 241 ; Rapalee v. Stewart, 37 N. Y., 311 . And this, perhaps, is a sufficient answer to his asserted claim, but it is not necessary to rest his defeat wholly upon that doctrine. The case of Kelly v. Crapo ( 45 N. Y., 86 ), declares it is true the doctrine that a title acquired under a foreign bankrupt or insolvent proceeding shall not prevail over the lien of a creditor attaching under our own laws property found here, but it nevertheless recognizes the rule that a voluntary conveyance, valid under the laws of the state where the owner resides, shall operate to transfer personal property wherever situate. The same principle is enunciated in Story, in his Conflict of Laws, section 398, and following sections, a position sustained by many cited cases. See, also, Kelstadt et al. v. Bernard Reilly, 55 How. Pr. Rep., 373 . The assignment having transferred the claims to which reference has been made, the other question presents itself, namely, is the plaintiff’s title one acquired under foreign bankrupt or insolvent proceedings, and the answer in the negative is found in the decision in the case of Mayer v. Hellman (1 Otto, 496), in which the •supreme court of the United States said of the statutes of the state of Ohio in reference to instruments similar to that under consideration herein: “There is nothing in the act resembling an insolvent law. It does not discharge the insolvent from arrest or imprisonment; it leaves his after-acquired property liable to his creditors precisely as if no assignment had been made.”

In this case, therefore, as in the case of Kelstadt v. Reilly (supra), as said by Justice Van Brunt in deciding that case: “It follows that the assignment under which the plaintiff claims, not having been made under an insolvent law of the state of Ohio, transfers all the property belonging to the assignor in this state, and gave to the plaintiff a title superior to that of any subsequent attaching creditor.

For these reasons, the plaintiff is entitled to judgment as agreed upon.

Van Brunt, Ch. J., and Macomber, J., concurs.