It appears in this proceeding that Louis Frank was the assignee of the defendant; that the assignment was. made under the act of I860; that the assignee took possession of the property and filed an inventory, but failed to give any bond, and expressed his intention not to give any, because he had not the ability to furnish the sureties required by law. The omission to file the security does not necessarily render the assignment void. It has been held in a series of cases that, notwithstanding the omission, the title vests in the assignee, and that the trust can be enforced by a court of equity. (Thrasher v. Bentley, 59 N. Y., 649; Worthy v. Benham, 13 Hun, 176; Brennan v. Wilson, 71 N. Y., 502; Hardmann v. Bowen, 39 id., 196.)
The order made was for this reason unwai’ranted. The assignee held the property for the benefit of all the creditors, and no one of them would be entitled to such a preference as a proceeding of this kind would give him.
We judge, from the points on behalf of the respondent, that there was an omission by the assignor to acknowledge the assignment, as required by the statute, and an omission to record it. It may be that the order of the learned justice was predicated of that circumstance, but it does not appear, from the papers presented, whether the assignment was acknowledged or not, and, therefore, it is impossible for us to sustain the order, on the ground that the omission to acknowledge was fatal to the validity of the instrument.
It becomes our duty, under the circumstances, therefore, to reverse it, but without prejudice to the rights of the plaintiff to renew the application, if it be as asserted in the brief of the *588respondent, that the assignment was not acknowledged and recorded.
Ordered accordingly, Avithout costs of appeal to either party
Present — Brady, P. J.; Ingalls and DaNiels, JJ.Order reversed, Avithout costs.