*319 By the Court,
Ingraham, P. J.The justice who tried this case has found that the assignments and agreement are one, constituting parts of one and the same transaction. That the creditors named in the second class are the same who signed the agreement, and no others are included therein. And that in consequence of the terms contained in the agreement, the assignments are void.
It was conceded on the argument, as the law of this state, that an assignment containing on its face a provision for the release of the debtor by the creditors who are preferred, is void. I see no difference in the application of this rule to a case where, by a secret agreement, the same condition is imposed upon a creditor. It would not be a creditable administration of justice to hold that an insolvent debtor may do by concealment what he may not do openly, and that he may, by a separate agreement which he conceals, compel his creditors to agree to his release on condition of his executing the assignment, which he could not do if the same agreement was inserted in the assignment.
The finding of the judge, therefore, that these two instruments are but one transaction, is conclusive as to this question. If they were but one transaction, then the assignment and the agreement to release are to be construed in the same way as if the agreement was incorporated in the other instrument.
The cases referred to by the counsel for the appellant are cases referring to the issuing of attachments, which hold that a mere threat to make an assignment if the creditor sues or does some other act, are not sufficient to warrant the issuing of an attachment, but they cannot be used to sustain the doctrine that a debtor may, by a secret agreement with creditors to release him if they are preferred, sustain an assignment giving such preferences..
The question put to the witness Furman was properly excluded. It asked not only for his own intent, but also for that of his partners. Had his own intent, merely, been *320the subject of inquiry it would have been admissible, under the decision in Seymour v. Wilson, (14 N. Y. Rep. 567,) but he could not testify as to the intent of his partners. Even if admissible, it would be immaterial,- because the facts here, of themselves, render the assignments void, irrespective of the intent of the parties.
[New York General Term, February 3, 1862.Ingraham, Leonard and. Gierke, Justices.]
The judgment should be affirmed.