Bostwick v. . Burnett

74 N.Y. 317, 1878 N.Y. LEXIS 742

• Court: New York Court of Appeals
• Decided: September 17, 1878
• Status: Published

Opinion

Rapallo, J.

The assignment under which the plaintiff claims title, was valid as against a subsequent execution creditor, notwithstanding the fact that it gave preferences. The United States bankrupt act has no application to the case. The defendant does not claim under any proceedings in bankruptcy, but under an execution issued out of a justice’s court, and it docs not appear that any proceedings in bankruptcy have ever boon instituted by or against the judgment debtor. The bankrupt act provides that preferences, made within a specified time prior to the filing of a petition in bankruptcy, may be avoided. If made anterior to the prescribed time they may stand even as against an assignee in bankruptcy. There is nothing in the bankrupt act wdiick. invalidates or affects a voluntary assignment, valid under the laws of the State, where no proceedings in bankruptcy are instituted. Such an assignment may be an act of bankruptcy which would authorize the filing of a petition by creditors ; but if no proceedings in bankruptcy are instituted, and the creditors proceed under the laws of the State for the collection of their debts, those laws must govern and no question under the bankrupt law can arise.

The property having been wrongfully taken from the possession of the plaintiff no demand was necessary. Ho point as to demand was made on the trial. The only point there taken was that the title had not passed to the assignee at the time defendant levied, the assignee not having then filed his bond.

That objection was untenable. The bond was filed within the time prescribed by the act.

The judgment should be reversed and a new trial granted, costs to abide the-event.

All concur, except Miller and Earl, JJ., absent.

Judgment reversed.