The facts necessary to be considered on the question involved in the appeal from the judgment in this action are stated in the opinion delivered in the case of Van Slyck v. Warner (118 App. Div. 40), decided herewith, and, therefore, it is unnecessary to restate them.
As to the judgment against Woodruff, there is absolutely no evi
But it is said the consideration paid by Woodruff was inadequate; that the trade marks were.worth, at the time the assignment was made to him, at least $20,000; and in this connection attention is called to the fact that four or five years afterwards Woodruff succeeded' in selling the trade marks to Ballard for $10,500. The profits of the corporation had never been large. The year preceding the sale to Woodruff the evidence indicates the net-losses aggregated upwards of $13,000, and for six years immediately preceding such sale the losses averaged nearly $2,000 a year. But a much more significant fact bearing upon the question of value is that the trade marks were sold by the receiver at public auction (due .and timely notice having been given of the sale) for $100; that they were bid off by Williams, who is counsel for the receiver on this appeal, and who then represented the principal creditor of the insolvent corporation — the Nassau Advertising Company. If the consideration paid by Woodruff were inadequate,' what shall be said of the sale made to Williams? And how can he, the Nassau Advertising Company, the J. F. Smith & Co., Incorporated 1901, or the receiver in this action justify their respective acts in permitting such sale to be made? That was considered a proper sale and no one thought of questioning it until the J. F. Smith & Co., Inqor
As to the judgment against Ballard — that also is without merit. The fact is not disputed that he paid Woodruff $10,500 in cash, but it is urged he. took the assignment from Woodruff with notice of plaintiff’s claim. Having reached the conclusion that- the assignment to Woodruff is good, it necessarily follows that the assignment from him to Ballard is good. However, it may not be out of place to call attention to the fact that there is no evidence that Ballard had notice of any claim by the receiver until after he had made the purchase. Before Ballard purchased he made a thorough investigation of Woodruff’s title; the records of the Patent Office at Washington were examined; counsel was consulted with reference to the claim of J. F. Smith & Co., Incorporated 1901; Warner & Co., who had made the assignments to Woodruff, was interviewed, and other steps taken for the purpose of ascertaining whether the title' which Woodruff had was good, or whether any one else had any claims against the trade marks, and as a result of his investigation he ascertained that the trade marks were sold to Woodruff on the 28th of September, 1899, more than a year before the receiver was appointed, and that for upwards of four years the receiver had not questioned his title. He also ascertained that the trade marks had been sold by the receiver at public auction and thereafter whatever title was acquired by the purchaser was assigned to the J. F. Smith
Those, and the other facts developed at the trial, establish that Ballard'acted in good faith and that the title acquired by him is good.
It follows, therefore, that the judgments against Woodruff and Ballard -are reversed and a new trial ordered, with costs to appellants to abide event.
Pattebson, P. J., Ingbaham, Clabke and Scott, JJ., concurred.
Judgments against Woodruff and Ballard reversed, new trial ordered, costs to appellants to abide event. Orders filed,