Taggart v. Herrick — 62 N.Y. Sup. Ct. 569

Majority

p. 569

BYRON B. TAGGART, WILLIAM W. TAGGART and MIRANDA BOTHWELL, Appellants, v. WILLIAM W. HERRICK, HENRY W. AYERS and HUMPHREY SISSON, Respondents.

Headnote

Assignment for creditors — the requirement that it designate the residence and business of the debtor is only di/reetory.

The provisions of chapter 294 of the Laws of 1888, directing that an assignment for the benefit of creditors of a debtor should state 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, are directory merely; and a failure on the part of the assignor to fully comply therewith does not render the assignment void.

Appeal by the plaintiffs from a judgment, entered in the office of the clerk of the county of Jefferson on the 2d day of October, 1889.

The action was brought to obtain an adjudication that an assignment for the benefit of creditors, made by the firm of Herrick &

Ayers, was void, and that the same be set aside and vacated, and

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that the plaintiffs be adjudged to be paid out of the moneys and funds that came into the hands of the assignee named therein under the alleged assignment, the amount of a judgment recovered by them against the assignors. The opinion of Mr. Justice Williams at Special Term, which was concurred in by the General Term, is printed as a note hereto.^[1]

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Hannibal Smith, for tbe appellants.

Watson M. Rogers, for tbe respondents.

Tbe general assignment act of 1S77 was amended by chapter 294, Laws 1888, so as to provide that in an assignment for tbe benefit of

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tbe creditors of a debtor tlie residence, kind of business carried on by sucli 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 manda, tory or directory is to be determined from the language used and the

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purpose in view. ( Wuesthoff v. Germania Life Ins. Co., 107 N. Y., 590 .) 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 indentified. 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 indentification of the assignor.

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Tliat being tbe 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 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., concurred.

So ordered.