McLean v. Prentice

Brady, J.:

This is a proceeding by a judgment creditor to set aside a voluntary assignment executed by James H. Prentice. It appeared upon the trial, however, that the fund arising from the sale of the assigned estate had been distributed under the deepee of the County Court of Kings county, several months prior to the commencement of this action. This is deemed a complete answer to the action.

The decree of the county judge of Kings county discharged the assignee absolutely, which he was authorized to do upon an accounting under the statute of 1877, chapter 466, to be found in Laws of that year, page 543. ’ Section 22 of that act expressly provides that all orders or decrees in the proceedings designated shall have the same force and effect, and may be entered, docketed and enforced, and appealed from, tbe same as like orders or decrees of a county court in an original action brought therein. And by section 25 it is provided also that any proceeding under the act, including a review by appeal or otherwise, should be deemed for all purposes one had in a court as a court of general jurisdiction, and further, that after the filing or recording of an assignment under the act, the court might exercise the powers of a court of equity in reference to the trust and any matters involved therein. The effect of the distribution was the same at common law. (Ames v. Blunt, 5 Paige, 13, 22, 23; Tomkins v. Wheeler, 16 Peters, 106; Burrill on Assignments [4th ed.], 752, 699.)

The appellant seeks to overcome the effect of this statute and common-law principle by the fact that the assignment bears date the 21st of September, 1880, and some portions of the stock' are inventoried on the twenty-second of September, the day following, and the proposition growing out of that circumstance that the decree only relates to the matters included in the accounting and does not, therefore, embrace the property had on the 21st of September, 1880. This is ingenious and doubtless correct in principle, but here is not available. The finding of the learned justice in the court below is that the whole of the assigned estate was distributed, which means all the property that the assignor had at the time of the assignment. The assignment appears to have been executed on the afternoon of the twenty-first of September* and possession taken the next morning. Our attention has not been called to any evidence, and we find none, in the case showing that there was any property on the twenty-first of September, belonging to the estate, which was not inventoried on the morning-of the twenty-second, when possession .was taken under and by virtue of the assignment. In the absence of such evidence, and as against the finding that the whole of the assigned estate had been distributed the proposition of the defendant’s counsel cannot prevail. It may be' that if the appellant were not met in limine by the decree mentioned some good reason could be found, springing-out of the evidence, for a successful assault upon the assignment; but it is not necessary, however, to pursue this subject further, the decree discussed having the force and effect of a judgment which •must protect the" assignee, the estate having been distributed in virtue of its direction. The judgment appealed from should, for ¡these reasons, be affirmed, with costs.

Davis, P. J., concurred.

Present Davis, P. J., and Brady, J.

Judgment affirmed, with costs.