Mumper v. Rushmore , 21 N.Y. Sup. Ct. 591 ( 1878 )

Gilbert, J.:

The nonsuit in this case was.clearly right. Before the plaintiff’s attachment was issued, the debtor in the attachment had made an assignment of all his property to an assignee upon trust to pay his debts. When this assignment was made, the property assigned was in the custody of the sheriff under a levy under an execution, in favor of another creditor, which had been issued prior to the assignment. The sheriff testified that he levied only upon goods sufficient to satisfy the execution, but we think his acts amounted to a levy upon all the goods. The assignment, therefore, transferred the interest of the assignor in the goods, subject only to the lien of the execution which was first issued, and it was effectual for that purpose. In such a case an actual change of the possession of the assigned property is not necessary. The deed transfers the title as between the parties to it, and the non-change of possession does not render the assignment void, as to the creditors of the assignor, for the reason that by the common law, and the statute in affirmance thereof, it is the retention of possession by the assignor, and not merely the non-delivery to the assignee, that is made the evidence of fraud in the transaction. If the assignment be of an interest m goods not in the possession of the assignor, ;o.r under his control, an actual delivery thereof is not required. (2 R. S., 136, § 5; Klinck v. Kelly, 63 Barb., 623; Ball v. Loomis, 29 N. Y., 412,)

The plaintiff had not the right to require the sheriff to enforce the attachment against the assigned property, notwithstanding jhe assignment, without indemnifying him. ; ■

The judgment must be affirmed, with costs.

Barnard, P. 3., concurred, Dykman, J„ not sitting.

Judgment affirmed, with costs.