Otis v. Hodgson — 45 N.Y. St. Rep. 92

Majority

p. 92

Charles F. Otis, Assignee, Resp’t, v. Thomas C. Hodgson, Late Sheriff, Appl’t.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Assignment for creditors—Place of business or residence.

The provision of the statute requiring the statement in an assignment, for creditors of the place of business or residence of the assignor is directory anchnot mandatory, and a failure to make such statement does not. invalidate the assignment.

Appeal from an interlocutory judgment rendered at the Monroe special term, December 17, 1891, overruling the defendant’s demurrer to the' plaintiff’s complaint upon the ground of insufficiency.

Turk & Barnum, for app’lt; O. A. iShuart, for resp’t.

The complaint of the plaintiff alleged that Francis Colvin, on the 16th day of August, 1890, executed and delivered to the plaintiff, by an instrument in writing, a copy of which is hereto annexed as a part of the complaint, a general assignment of his property for the benefit of his creditors; that the-plaintiff accepted the trust, and immediately thereafter entered into possession of the property for the purpose of carrying out the assignment; that the proper inventory and schedules were made out and duly filed; that the plaintiff executed the bond required by law; that it was duly approved and filed; and that .on the 22nd day of September, 1890, the plaintiff being then in possession of the stock of goods, the defendant, with full knowledge of the assignment and of plaintiff’s possession of the property, took forcible possession of the premises where the goods and property were, and took the stock of goods from the possession of the plaintiff, and converted and disposed of the same. That the goods were of the value of eleven hundred dollars, and that plaintiff as assignee was injured in that amount, for which sum he demanded, judgment. The assignment failed to state, as required by the statute of 1888, the residence or business of the assignor. The defendant demurred to the complaint of the plaintiff on the ground that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action.' The issue of law thus raised came on for trial at a special term of the supreme court That court directed an interlocutory judgment overruling the demurrer, and the defendant appealed therefrom to this court Chapter 294 of the Laws of 1888 provides that every conveyance or assignment made by a debtor of his estate, real or personal, or both, to an assignee for the creditors of the debtor, shall be in writing, and shall specifically state therein the residence and the kind of business carried on by such debtor at the time of' making the assignment, and the place at which such business shall be conducted, and if such place be in a city, the street and number thereof; if in a village or town, such apt designation as shall reasonably identify such debtor. It was held in Taggart v. Sisson, 29 St. Rep., 424 ; in Mullin v. Sisson, 31 id., 210; in Strickland v. Laraway, 29 id., 873, all general term decisions, that the failure to state the residence and the business of the assignor did not invalidate an assignment. Justice Williams, in a well considered opinion, reported, in the 9 N. Y. Supplement, 759, holds to the same effect.

The construction given to this statute by the foregoing cited cases meets with our approval.

Justice Daniels in a case arising in Orleans county, not reported, held that such omission did not invalidate an assignment. Judge Bookstaver, in Bloomingdale v. Seligman, 22 Abb. N. C., 98 ; 19 St. Rep., 64 , held otherwise.

The statute, we think, should be construed as directory and not mandatory.

The plaintiff was in possession of the property by the act and consent of the assignor claiming to hold it for the benefit of cred-

p. 94

¿tors. His possession of the property was sufficient to entitle him. to maintain the action as against every one but the real owner or those claiming lawfully under him. A bailee of chattels may maintain such an action, even though he be merely a gratuitous bailee. The finder of goods may recover their value from a wrongdoer who subsequently converts them. Mathews v. Harsell, 1 E. D. Smith, 393.

We think the weight of authority goes to sustain the plaintiff’s •contention, and that the judgment appealed from should be .affirmed, with costs, with leave to the defendant to answer on payment of costs.

Dwight, P. J., concurs; Macomber, J., not sitting.