In re the Assignment of Foley & Co.

10 Daly 4, 55 How. Pr. 386, 4 Abb. N. Cas. 90

• Court: New York Court of Common Pleas
• Decided: January 15, 1878
• Status: Published

Opinion

J. F. Daly, J.

The attachment of Thomas Hanley, a creditor of the assignors, Foley & Co., which was issued by the Marine Court on the ground that Foley & Co. had fraudulently disposed of their property, can be levied only upon the property claimed to have been fraudulently assigned, and not upon its proceeds (Lawrence v. Bank of the Republic, 35 N. Y. 320; Lanning v. Streeter, 57 Barb. 33 ; Campbell v. Erie R. Co., 46 Barb. 540; Greenleaf v. Mumford, 50 Barb. 543; McElwain v. Willis, 9 Wend. 548).

In this case the attachment was levied on two classes of property in the possession of David Leventritt, attorney of the assignee, viz: (1) moneys collected from debtors of the assignors upon claims placed in Mr. Leventritt’s hands by the assignee for collection; and, (2) claims against other debtors of the assignors uncollected.

The proceeds of collected claims are to be regarded in the same light as proceeds of sales of property. When the claim is uncollected the debt maybe levied on under the attachment, but when the debt has been paid before the attachment is issued nothing remains which is the subject of levy, and the creditors of the assignors can only reach the proceeds by action in equity against his assignee after exhausting their legal remedies.

It follows, therefore, that whatever moneys had been collected by the attorney for the assignee before the attachment was issued are not the subject of attachment, and must be paid over by Mr. Leventritt to the assignee.

Application granted.