Taggart v. Sisson — 29 N.Y. St. Rep. 424

Majority

p. 424

Byron B. Taggart et al., App’lts, v. Humphrey Sisson, Impl’d, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 15, 1890.)

Headnote

Assignment for creditors—Laws 1888, chap. 294.

The provision of chapter 294, Laws 1888, amending the general assignment act, that the assignment shall specifically state the residence of the assignor, the kind of business carried on by him and place where conducted, with number and street, if in a city, is not mandatory, but declaratory only, and a failure of the assignor to comply therewith does not render the assignment void.

Appeal from a judgment entered in Jefferson county October 2, 1889, dismissing the plaintiffs’ complaint, without caste to either party.

Hannibal Smith, for app’lts; Watson M. Rogers, for resp’t.

The general assignment act of 1877 was amended by chapter 294, Laws 1888, so as to provide that in an assignment for the benefit of the creditors of a debtor the residence, kind of business carried on by such debtor at the time, the place where conducted, and, if in a city, the street and number should be specifically stated. Whether this provision is mandatory and a full compliance with it a condition precedent to a valid assignment, or whether it is only directory, is the only question presented by this appeal.

The intention of the legislature is the cardinal consideration in the construction of statutes, and whether a particular provision is mandatory or directory is to be determined from the language used and the purpose in view. Wuesthoff v. Germania Ins. Co., 107 N. Y., 590 ; 12 N. Y. State Rep., 825. In view of the language of this amendment and its purpose, can it be held that the statute is mandatory? The apparent purpose of the statute was to provide a means whereby the debtor might be easily identified.

It has been said that the real object of this amendment was to enable certain commercial agencies to follow insolvent debtors and identify them by their place of residence and business, as well as by their names. But be that as it may, still the purpose of the amendment was the identification of the assignor. That being the purpose of the statute, was a literal compliance with its requirements, a condition precedent to a valid assignment ? If so, then a slight error or insufficiency of description of the debtor’s business, the place where conducted, or where he resided, would

p. 425

render an otherwise valid assignment void. This is an affirmative statute. It contains no express words of negation, and we think none are to be implied. We do not think the language and purpose of this amendment indicate a legislative intent to make its provisions mandatory, but are of the opinion that the statute should be regarded as merely directory, and that the failure of the assignor to fully comply with its provisions did not render the assignment void.

We deem a further examination of this question wholly unnecessary, as we concur in the opinion of Mr. Justice Williams in the case, where the question and the authorities bearing upon it were fully considered.

Judgment affirmed, with costs, on opinion of Williams, J., delivered at special term.

Hardin, P. J., and Merwin, J., concur.