Hedges v. Bungay — 10 N.Y. Sup. Ct. 594

Majority

p. 594

CHARLES HEDGES and others, Plaintiffs, v. GEORGE W. BUNGAY, Jr., Assignee of E. P. BOWEN, Defendant.

Headnote

General assignment—assignee undw' — when title to assignor''s property passes to — Bond—§ 3, chap. 348, of 1860 — chap. 600 of 1874.

An assignee, under a general assignment for the benefit of creditors, does not take title to the assignor’s estate, unless the bond required by section 3, of chapter 348, of the Laws of 1860, is approved and filed.

Chapter 600, of the Laws of 1874, does not affect this provision of the act of 1860.

p. 595

Controversy submitted without action, under section 372 of the Code. The question raised was, whether the omission to obtain the approval by the county judge" of the bond of an assignee under a general assignment for the benefit of creditors, invalidated the assignment.

Charles H. Knox, for the plaintiffs.

The strict letter of section 3 of chapter 348 of 1860, is to be adhered to. (Juliand v. Rathbone, 39 N. Y., 369 ; Hardman v. Bowen, id., 196; Cook v. Kelly, 12 Abb., 35 ; affirmed, 14 id., 466; People v. Supervisors of New York, 11 id., 114.)

Henry Arden, for the defendant.

This is a controversy submitted without action, under section 372 of the Code.

The plaintiffs had judgment, and caused levy to be made on certain property of Bowen, their judgment debtor. Before this levy, Bowen had made a general assignment for the benefit of creditors, to the defendant, under the act of I860,^[1] but the bond of the assignee, required by section 3 of that act, to be approved by the county judge, and filed within thirty days, etc., had not been so approved; the reason given is, that the bond was ready, but the judge was absent from the county. The bond was filed without such approval.

The case of Juliand v. Rathbone,^[2] governs the question here presented, and controls the case. The assignee did not take title to the assignor’s estate, until the bond was approved and filed, because of the peculiar language of section 3 of the act, which says that, until such security be given, the assignee shall have no power or authority to sell the property, or to convert the same to the purposes of the trust. And the amendment to the act, by chapter 600, Laws of 1874, does not affect this provision. The plaintiffs, by their levy, acquired a lien which was not defeated by the existing assignment, and they should have judgment, on the submitted case, with costs.

■ Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment for plaintiffs on submitted case, with costs.

* Chap. 348.

† † 39 N. Y., 369 .