The facts are fully stated in the opinion of Mr. Justice Shearn, except for the omission of the somewhat significant fact that the sale in bulk was made to the wife and son-in-law of the defendant Aniello Baselice.
The Bulk Sales Law (Laws of 1914, chap. 507, amdg. Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 44) provides, so far as material to the instant case, that the sale in bulk of a stock of merchandise, not made in the usual course of business, shall be void unless five days before the sale the purchaser shall demand and procure a verified fist of the creditors of the seller, containing their addresses and the amount due each, and unless the purchaser shall, at least five days before taking possession of or paying for such merchandise, notify personally or by registered mail every creditor whose name and address are stated in the list of the proposed sale, and of the price, terms and conditions thereof. The statute further provides the remedy for its violation that was pursued in this case.
In so far as this statute takes away the free and unrestricted right that a man has to sell and dispose of his own property, it is in derogation of the common law and must be strictly construed. Therefore, when we consider whether the prohibition of the statute applies, it must appear that there is a creditor who had a valid debt for a certain amount then due; a contingent liability of the seller is not sufficient. (Apex Leasing Co., Inc., v. Litke, 173 App. Div. 323, 326.) In the case at bar Aniello Baselice, on the date of the sale, was directly hable to the plaintiff on two of the series of notes that had fallen due and been protested for non-payment prior thereto, and contingently liable as an irregular indorser on the other outstanding notes. (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 114.) Inasmuch as it is admitted that Baselice had paid all the notes that *347had fallen due prior to that time, the contingency would seem to be rather one of time than event. There was then a creditor of Baselice, within the letter of the statute, at the time of the sale, and concededly none of the requirements of the statute were complied with. The sale was, therefore, void as to the plaintiff.
The remaining question is, Did the payment of the judgment recovered on these two notes relieve the defendants from iiability to account to. the plaintiff for the property so sold?. In this phase of the case we are dealing with the remedial portion of the statute. Did this payment validate the sale and defeat the remedy of the plaintiff? In my opinion it did not. Although, as has been above stated, the statute is to be strictly construed in so far as it impairs the right of the defendants, yet in so far as it is remedial it is to be liberally construed in the interest of the plaintiff so as to give effect to the intention of the Legislature. (Fish v. Fisher, 2 Johns. Cas. 89, 90; Smith v. Moffat, 1 Barb. 65, 67.) “ In the interpretation of statutes, the great principle which is to control is the intention of the Legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute, as well as other circumstances.” (People ex rel. Wood v. Lacombe, 99 N. Y. 43, 49.) “The statute must be construed with reference to the objects it had in view, the evils intended to be remedied and the benefits expected to be derived from it.” (Republic of Honduras v. Soto, 112 N. Y. 310, 312.) As Chancellor Kent has stated, it is the duty of judges “to make such a construction as should repress the mischief and advance the remedy.” (Kent Com. 464.) The mischief that the Bulk Sales Law was intended to suppress was the sale, by persons who were pecuniarily involved, of the entire or a substantial portion of their stock of merchandise without notice to their creditors, so that the latter could take such steps as might be necessary for their protection. Such sales had been made through auctioneers or to members of the seller’s family. The instant case is typical of those within the contemplation of the Legislature. Aniello Baselice, as accommodation indorser on a series of notes, had been compelled to pay all that had fallen due, that had been paid. He was indebted for some
*348that had become due, which had not been paid. And there was a substantial amount yet to become due, but which with reasonable certainty he would be called upon to meet. To escape the liability of having his goods appropriated to the payment of these obligations, he transferred his business, merchandise and fixtures to his wife and son-in-law. The plaintiff, being at that time a creditor, was entitled to notice of the contemplated sale and, had it been given, the plaintiff could have taken such steps as would protect itself not alone with respect to the debts actually due, but as to those to become due. To allow a person to defeat the purpose of the statute by subsequently paying such portion of his then indebtedness as had matured prior to the sale would to my mind tend to suppress the remedy and advance the mischief. By giving the statute the liberal construction of its remedial portion that is required, we should hold that the sale was void as to the plaintiff, and that the property was held by the purchasers as a receiver for the plaintiff, and that they are accountable to the plaintiff therefor to the extent of the entire debt due and owing from the defendant Aniello Baselice to the plaintiff at the time of rendition of judgment herein.
The judgment should be reversed, with costs to the appellant, and judgment granted for the plaintiff in the form provided in the statute, with costs.
Clarke, P. J., concurred.
Judgment affirmed, with costs.