This is an action brought by the Plaintiff as assignee of Ambrose W. Barnes, under an assignment in trust for the benefit of creditors, to recover the value of goods amounting to $3,000 taken by the Defendant. He justified under a judgment and execution in favor of Horace B. Clafflin and others against the said Barnes, alleging that the assignment was fraudulent.
The assignment contained these provisions:
“ The said party of the second part shall take possession of all and singular the goods, chattels, property, and effects hereby assigned, and sell and dispose of the same upon such terms and conditions as in his judgment shall appear best, but not upon credit,” etc.; and “ shall first pay and disburse all the just and reasonable expenses, costs, and commissions of executing and carrying into effect the assignment; ” and “ all rent due or to become due on the store now occupied by the party of the first part, until the goods contained therein and thereby assigned can be disposed of.”
Shall also with the net proceeds, etc., first pay all debts “ designated in the schedule hereto annexed, marked Schedule B,” and which was the first and only preferred class made by the assignment.
In Schedule B is the following provision:
“ The amount that maybe found due the sheriff of Madison county, by virtue of attachment in the Supreme Court in an action wherein Charles Bridge is Plaintiff, and Ambrose W. Barnes is
It appeared in evidence that, immediately after the assignment, the assignee hired four clerks at a monthly salary of about $98 per month, and continued the business of the store, selling only at retail for about two months, and until the goods were taken in these proceedings. See folios 65, 66, and 67.
It also appeared, that, in the action of Charles Bridge against Ambrose W. Barnes, a judgment, was recovered by Bridge for $537.85 upon an offer made by Barnes on the 11th day of December, 1861. The original claim in this suit was $432.08, and property of the appraised value of $1,020 was seized and held under the attachment.
I. It is expressly held in several cases by this Court, that an assignment is not void for withholding from the 'assignee any discretion to sell the trust property upon credit. In Carpenter v. Underwood (19 N. Y. 520),