Majority
p. 76Charles M. Kittredge et al., Assignees, Resp’ts, v. J. Wesley Van Tassell, App’lt. (Supreme Court, General Term, Second Department Filed May 12, 1890.)
Headnote
Assignment for creditors — Preference to wife of assignor.An indebtedness of a husband to his wife for a loan of money which she has earned under an agreement with him that she might keep boarders and have the profits arising therefrom is one which the husband may legally incur and as such it may be the subject of preference in liis assignment for the benefit of creditors.
Appeal from judgment in favor of plaintiffs.
Action for conversion of personal property by defendant as sheriff under attachment and execution against one James M. Davis, of whom plaintiffs are the assignees under a general assignment for creditors.
The court below found as follows:
I. That for three years prior to the 16th day of March, 1889, James M. Davis was engaged in the retail dry goods business at Fisbkill Landing, Dutchess county, N. Y.
II. That on the 16th day of líarch, 1889, the said James M. Davis made a general assignment for the benefit of his creditors to the plaintiffs, Charles M. Kittredge and Jennie Davis.
III. That said Charles M. Kittredge and Jennie Davis, as the assignees of said James M. Davis, immediately took the actual possession of the assigned property.
IY. That on or about the 18th day of March, 1889, the said assignees filed their bond, as required by law, in the office of the clerk of the county of Dutchess, duly approved by the Hon. D. W. Guernsey, county judge of Dutchess county.
Y. That on or about the 21st day of March, 1889, the defendant, J. Wesley Yan Tassell, seized and carried away from the custody and possession of said plaintiffs, goods and merchandise, and converted the same to his own use, of the value of $1,353.72. That said goods were a part of the property assigned to said plaintiffs by said James M. Davis.
YI. That in the fall of 1878 the said James M. Davis, then living in the city of New York, entered into an agreement with his wife, Jennie Davis, that she might engage in the business of keeping boarders, receive all the money from all the boarders, pay "all the expenses of said business and to have all the profits arising from said business, the said James M. Davis on his part
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to pay the rent of the house in which said business was to be carried on, and was to have his board and washing free from any charge.
VII. That in pursuance of said agreement the said Jennie Davis engaged in and carried on said business from the fall of 1878 until the 1st day of March, 1886, and during all that time received all the money from her boarders for their board and paid from the same all the expenses of carrying on said business, and the profits arising therefrom she gave at various times to James M. Davis to deposit for her in the North Eiver Savings Bank in the city of New York, which he did.
VIIL That during the year 1884 she drew from her money in said savings bank the sum of §1,500 and loaned it to M. L. Doyle, a merchant in the city of New York.
Subsequently she called in the money loaned to Doyle and loaned the sum of $1,500 to Isaac M. Davis, of Fonda, Montgomery county, in the month of December, 1884, who paid the same back to said Jennie Davis about the 1st day of March, 1886.
That on or about the 1st day of March, 1886, the said Jennie Davis loaned the said §1,500 to her husband, James M. Davis, who used the same in his business at Fishkill Landing, and the same has not been paid, nor any part thereof.
IX. That said James M. Davis at the time he made said assignment was indebted to Maggie Wert in the sum of $302.56 for money she had loaned to said James M. Davis at various times previous to the 5th day of July, 1888, on which day he gave her his promissory note for that amount
And as conclusions of law, that the contract entered into between James M. Davis and Jennie Davis, by which she was to engage in the business of keeping boarders, was a valid and legal -contract; that said business was her separate and independent business, and that the profits arising therefrom was her separate estate and belonged to her; that the taking of said goods and merchandise from the custody and possession of the plaintiffs by the defendant and converting the same to his own use was a wrongful and unlawful taking of the same, and without any justification; that the plaintiffs are entitled to recover of the defendant the value of said goods and merchandise, to wit, the sum of $1,353.72, with interest thereon from the 21st day of March, 1889, being $60.90, and amounting altogether to the sum of $1,414.63.
John B. Green, for app’lt; II. 11. Huslis, for resp’ts.
This is an action against the sheriff for the seizure of a stock of goods. The plaintiffs are the general assignees' of James M. Davis, and were in possession of the property in question when the sheriff seized the same under a warrant of attachment issued against the property of the plaintiffs’ assignor.
The cause was tried before a judge without a jury, and he found all the facts against the defendant and rendered a judgment in favor of the plaintiffs.
The conclusions of law reached by the trial judge follow legiti
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mately from, the facts found, which were amply justified by the evidence introduced upon the trial.
The principal assault upon the assignment was directed to the preference of the debt of the wife of the assignor, but the proof showed her claim to be such an obligation as the husband might legally incur, and being such, it might be the subject of preference in his assignment for the benefit of creditors. We coincide with the decision of the trial judge and find no error in the record.
The judgment should be affirmed, with costs.
Pratt, J., concurs.