Barth v. Backus — 51 N.Y. St. Rep. 111

Majority

p. 111

John Barth, Assignee, et al., Resp’ts, v. Erastus P. Backus, Sheriff, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed February 15, 1893.)

Headnote

Assignment fob creditors — Foreign assignment.

A voluntary assignment for the benefit of creditors by a debtor residing in another state, valid by and under the laws of that state, and not in contravention with the law or policy of this state, operates as an assignment of the debtor’s property in this state, and the assignee can hold the same against subsequent attaching creditors in this state.

Appeal from judgment for plaintiff, after trial at special term without a jury.

August 19, 1891, the Wilkin Manufacturing Company, a Wisconsin corporation engaged in business at Milwaukee, made to the plaintiff, John Barth, a general assignment of all its property for the benefit of creditors, without preferences, under chapter 80 of the Revised ' Statutes of Wisconsin and the acts amendatory thereof. The Canton Lumber Company, of this state, was then indebted to the Wilkin Manufacturing Company in the sum of $6,170.24. After the assignment, but before the beginning of this action, the defendant, Erastus P. Backus, as sheriff, attached the said debt under warrants of attachment in four several actions in this court against the Wilkin Manufacturing Company, in one of which the Bank of America was plaintiff, while the St. Lawrence County Bank was plaintiff in the others. Both banks are New York corporations. This action was brought by the plaintiff, as assignee, against the Canton Lumber Company, to recover said debt; the amount of the debt was paid into court by the Canton Lumber Company; and Sheriff Backus, claiming it by virtue of the attachments, was substituted as a defendant in place of the Canton Lumber Company. After the beginning of this suit the money in court was attached, under a warrant of attachment in a fourth action brought by the St. Lawrence County Bank a en ins t the Wilkin Manufacturing Company, by L. Howard Wilson, the present sheriff of St. Lawrence county, who was also made a party defendant to this action. After a trial at special term, before Justice Russell

p. 112

without a jury, the court rendered a decision in favor of the plaintiff, on which the judgment appealed from was entered.

Nelson L. Robinson, for app’lts; Ledyard P. Hale (Thomas Spratt, of counsel), for resp’t

It has been held that a voluntary assignment by a residing in another state, valid by and under the laws of that state, and not in contravention with the law or policy of this state, operates as an assignment of the debtor’s property in this state, and that the assignee can hold the same against subsequent attaching creditors in this state. Ockerman v. Cross, 54 N. Y., 29 ; approved in Warner v. Jaffray, 96 id., 248.

There seems to be nothing in the law of Wisconsin under which the assignment is made or in the assignment itself that is hostile to the statutes or policy of this state. Mr. Justice Russell, before whom this case was' tried, has written so fully upon the question, that it seems to me unnecessary to enlarge upon it here, inasmuch as I agree with the conclusion arrived at by him.

The judgment should be affirmed, with costs and disbursements.

Mayham, P. J., and Herrick, J., concur.