Scott v. Mills — 26 N.Y. St. Rep. 124

Majority

p. 124

David A. Scott, Resp't, v. Harrison Mills, App’lt.^[1]

(Court of Appeals,

Filed October 8, 1889.)

Headnote

Assignment for benefit of creditors — Laws 1877, chap. 466: 1888. chap. 294.

It is not necessary that the formal assent of an assignee for the benefit of creditors should be written out in any particular words or language in the instrument or outside of it. When he subscribes the assignment, his assent to its terms does “ appear ” as required by the statute. It does not require a separate assent. The record of the assignment is presumptive-evidence of its delivery.

Appeal from judgment of general term, second department, affirming judgment for plaintiff entered at Orange county special term.

E. Countryman, for app’lt; M. H. Hirschberg, for resp’t.

The validity of the debtor’s assignment is assailed on the sole ground that the assent of the assignee was not manifested in the manner now provided, by law. The statute requires-that “ the assent of the assignee subscribed and acknowledged by him shall appear in writing embraced in or at the end of or indorsed upon the assignment before the same, is recorded, and if separate from the assignment, shall be duly acknowledged”' Laws of 1877, chap. 466, § 2; Laws of 1888, chap. 294, § 2. The assignment here in question was in the usual form and was-executed and delivered to the assignee on the 20th day of January, 1885, who thereupon took possession of the property; and was subscribed and acknowledged both by the assignor and assignee before its record in the proper office, which was on the day after its execution. Certain creditors of the assignor there- , after caused a levy to be made upon the property assigned, and ■ the sheriff has been sued for an unlawful taking of the goods. His levy has been adjudged wrongful, and judgment has gone-against him for the value of the property so seized.

The levy is sought to be justified upon the ground that the signature of the assignee to the assignment was not such an assent in writing as the statute requires. The criticism is that the assent manifested by the signature of the assignee is a matter- of inference merely, while the statute requires it to be expressed in writing. The objection is extremely narrow and technical, and not' justified by the language of the statute. That does not require that a formal assent in any particular words or language shall be written out in the instrument or outside of it, but that the assent of the assignee subscribed by him “shall appear ” in writing, embraced" in or at the end of or indorsed upon the assignment, unless manifested by a separate paper. When the assignee subscribes the assignment, his assent to Esternas does “ appear.” It is not matter of inference, but an expressed assent which appears upon the face of the paper. If a formal acceptance had been written out on a separate paper, his signature to that paper would be an assent to its terms; and so-

p. 125

Ms signature to the assignment is an assent to its terms, and when those terms provide that the property shall be assigned to-Mm in trust to be disposed of by him m a certain way, he assents by Ms signature to the duty and the trust wMch the instrument imposes upon him, and that assent is as clearly expressed as if he had assented by a separate paper. The statute does not require such separate assent. It may be “ embraced in” the assignment, and is embraced in it when the assignee appends his signature, In the face of that he could not deny the acceptance of the trust; he could not say that' he had not assented to the transfer of the property to himself for the purposes and upon the conditions of the deed, or assert that he never agreed to accept the transfer.

What more does the statute require ? The assignment is an indenture. It describes itself as such. It purports to be made,, not by Lawson the assignor alone, but between him and the assignee, and so explicitly declares that there is a contract on both sides; acts done or to be done and covenants to be performed by each party. The indenture then goes on to specify what these are. The assignor transfers the property, but upon trusts wMch impose duties and obligations towards the assignor and his creditors upon the assignee. The signatures of the two parties express their assent to all that is contained in the instrument, and therefore to an agreement to do and perform each for himself the duties and obligations which on the face of the paper pertain to each, respectively.

I do not agree with the learned counsel for the appellant that the design of the statute was to dispense with a delivery of the instrument after its proper execution and acknowledgement, but I do agree with him in his further statement that the apparent object was to compel the parties to produce written evidence, that-would prove itself, of all the essential acts to a perfect and complete transfer of the property to the assignee. All that was fully accomplished in the present case. The record of the assignment was presumptive evidence of its delivery, and the assent of the parties to all its terms was manifested by the form of the indenture and the subscription of both parties to it.

Ho other question is raised on this appeal.

The judgment should be affirmed, with costs.

All concur.