Hyperlawhypertext legal database Burghard v. Sondheim 50 N.Y. Super. Ct. 116

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Burghard v. Sondheim

50 N.Y. Super. Ct. 116 18 Jones & S. 116 Court N.Y. Super. Ct. Decision date 1884-02-04 English

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EDWARD M. BURGHARD, as Receiver, &c., Appellant, v. PHILIP L. SONDHEIM, et al., Respondents.
Decided February 4, 1884.

Headnote

Assignment for the benefit of creditors.
Where the assignment was of all the property contained in Schedule B, to pay the debts mentioned in Schedule A, and referred to the schedules as annexed, but as a matter of fact they were not annexed, and were not recorded with the assignment. Held, that the schedules were not a necessary part of the assignment which was complete without them, and sufficient under the statute.
Before Sedgwick, Ch. J., and Tettax, J.
Appeal from judgment at special term in favor of the respondents, dismissing the complaint.
The facts appear in the opinion.
Charles H. Smith, for appellant.
I. Whatever is declared on the face of an instrument to refer to an annexation such annex is a part of it, and should be read with it (Van Vliet v. Slausson, 45 Barb. 317 ; Coddington v. Davis, 1 N. Y. 186 ; Rogers v. Kneeland, 10 Wend. 219 ); and being part of it should be recorded with it in the county clerk’s office (L. 1877, p. 543, c. 466, §§ 2, 24). Where a schedule is made a part of the conveyance and is referred to as containing the specification of the property conveyed, and was intended to be annexed, it must be annexed not only as a description of the property but as necessary, by the very terms of the instrument, to complete the transfer (Moir v. Brown, 14 Barb. 39 ; Scott v. Guthrie, 25 How. 481 ). The absence, therefore, of the schedules A and B from the record, leaves it silent as to the persons to be benefited.
II. The validity of an assignment for the benefit of creditors takes effect by virtue of the record thereof. This is the inception of it and jurisdiction to permit and entertain subsequent proceedings depends upon this act of recording. These jurisdictional essentials consist of 1, the
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writing ; 2, subscribing by assignor and assignee ; 3, assent of assignee in writing; 4, acknowledgment by both.; 5, duly recording in the county clerk’s office, and were provisions to remedy an abuse and are to'be strictly followed (Fairchild v. Gwynne, 16 Abb. 23 ; Taylor v. Trancose, 76 N. Y. 599 ). An assignment was recorded without an assent of the assignee in writing. Proof of oral assent was held immaterial. The failure to record the assent in writing, rendered the instrument inoperative and void as against creditors claiming under an attachment (Rennie v. Bear, 24 Hun, 123 ). The instrument designates two schedules alleged to be annexed to it. This renders these schedules part and parcel of the instrument, inseparable from it, to be handed with it for record to the county clerk, and to be recorded with it.
The 67 N. Y. 199 , cited in the court below, is not an authority. That appeal was dismissed for want of jurisdiction (p. 204). And the schedules in the act provided for are not those provided for by the instrument itself.
Melvin & Sleckler, for respondents.
I. An assignment that passes title is sufficient, although the subject matter conveyed is only generally described. Schedules were not necessities. Says Folger, J.: “The right to assign does not rest upon the statute. The act does not give the right. The right exists at common law. It recognizes the existence of the power in the citizen to make an assignment for the benefit of his creditors, and does no more than prescribe the mode in which the power shall be used.” “It is a statute, not of creation, but of direction ” (Thrasher v. Bentley, 1 Abb. N. C. 39 ). Says Church, Ch. J.: “ The evident purpose of the statute was to secure a faithful performance of the duties of the trustee under the assignment. The assignment placed the property beyond the reach of the ordinary process of courts, and it was to give creditors security for it in that condition that the act was passed” (People v. Chalmers, 60 N. Y. 154 ). So far, then, as the assignor is concerned, an assignment by him , without
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schedules at all is valid. The common law required no schedules, and in the light of the foregoing decisions and the general rule that a general description of the assigned property is sufficient to convey title, this assignment is sufficient. Mr. Bishop states the requisites of such an assignment to be: 1. A conveyance of the debtor’s property, 2. A trust, 3. To sell the property, 4. To distribute the proceeds (Bishop Insolvent Assignments, 106).
II. The assignment is complete without the schedules, although schedules be referred to in it. They are not necessarily a part of the assignment. At common law they were not required. The statute does not require them as part of the assignment (Laws 1877, ch. 466 ; 3 R. S. 7 ed. 2276; Kellogg v. Slauson, 11 N. Y. 302 ; Matthews v. Poulteney, 33 Barb. 127 ). . 1 ‘ Where the description in the body of the assignment is of all the debtor’s property with a refence to schedules, and the schedules are in fact not annexed, at the time of the delivery of the instrument such omission will not invalidate the assignment” (Birchell v. Strouse, 28 Barb. 293 ; Platt v. Lott, 17 N. Y. 478 ; Turner v. Jaycox, 40 N. Y. 470 ; Wronkow v. Killeen, 3 Month. L. Bul. 82). In Produce Bank v. Morton ( 67 N. Y. 199 ), held, that an omission to make and deliver schedules did not invalidate the assignment. Here was an omission to comply with a plain statutory direction, absolute and requisite. An omission of assets from schedules does not make the assignment void (Shultz v. Hoagland, 85 N. Y. 464 ).

This is an appeal from a judgment of the special term in favor of the defendants. The action was brought to set aside an assignment for the benefit of creditors. ° The assignment was of all the property contained in schedule B, and was made to pay the debts mentioned in schedule A. The assignment referred to these schedules as annexed to it, but, as matter of fact, they were not so annexed and were not recorded in the office of the county clerk with the assignment. It is on this ground that the plaintiff seeks to set aside the assignment. Neither of the

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s chedules was a necessary part of the assignment. That instrument was complete without them. It conveyed all of the assignee’s property in trust to pay all his debts. That was all that the statute required.

The judgment is affirmed, with costs.

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