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Shepherd v. Burt

10 N.Y. Super. Ct. 645 3 Duer 645 Court N.Y. Super. Ct. Decision date 1854-04-01 English

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p. 645
Shepherd, Assignee, v. Burt.

Headnote

An assignee, who brings an action to recover possession of property which, has been seized on an attachment at the suit of the creditor of the assignor, will not be compelled, under § 31Í of the Code, to file security for costs, on an allegation that the assignment is a fraud upon creditors, and the assignee is a party to the fraud unless there be such evidence of the truth of the allegation aa
p. 646
renders it highly probable, that the allegation is in accordance with the facts of the case. Under that section, it is entirely in the discretion of the court, in all cases, whether security shall be required or not.
At Chambers,
April 1, 1854,
before Duer, J.
This action was brought to recover damages for taking and carrying away certain goods which had formerly belonged to Mason the assignor, but which the complaint averred had passed to the plaintiff under the assignment. The defendant, a creditor of Mason, had seized the goods under an attachment, and now upon the ground that the assignment was fraudulent and void as against' creditors, and that the plaintiff was a party to the fraud, moved under § 317 of the Code as last amended, that the plaintiff should file security for costs.

The judge said that he had considerable doubts whether the case was covered by the section, since the title of the plaintiff as a trustee was denied, and if the defendant prevailed there would be no estate or fund upon which the costs could be charged. He deemed it unnecessary, however, to decide that question, as he was clearly of opinion that whatever might have been the motives of the assignor, the facts disclosed by the affidavits were not such as could justify him in imputing bad faith to the plaintiff. The power of the court to require security, was purely discretionary, and ought not to be exercised unless the imputation of bad faith was rendered at least highly probable. Motion denied, with $5 costs. (Vide Darby v. Condit, 1 Duer, 549 .)