McClelland v. Remsen

New York Court of Appeals

McClelland v. Remsen

5 Abb. Pr. 250, 3 Keyes 454, 3 Trans. App. 182

DecidedJune 15, 1867

StatusPublished

This text of 5 Abb. Pr. 250 (McClelland v. Remsen) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McClelland v. Remsen, 5 Abb. Pr. 250, 3 Keyes 454, 3 Trans. App. 182 (N.Y. 1867).

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Opinion

Porter, J.

—It was the right of either of the firm to secure the plaintiff, as one of its creditors, by a transfer of partnership property (Mabbett v. White, 12 N. Y., [2 Kern.], 443 ; Graser v. Stellwagen, 25 N. Y, 315).

The assignment, in this instance, was in the nature of a mortgage. It did not divest the entire title, but left a residuary interest in the assignors, which could be reached by their other creditors. Its primary purpose was to secure the payment of the debt, and the trust to account for the surplus was purely incidental. Such a trust is not within the condemnation of the statute, and such a reservation is not unlawful (Leitch v. Hollister, 4 Comst., 211 ; Curtis v. Leavitt, 15 N. Y, 141 ; Dunham v. Whitehead, 21 Id., 131).

The judgment of the supreme court should be affirmed.

Grover, J.

—No grounds were stated upon which the motion for nonsuit was made. Hence no question arising upon that motion can be entertained in this court. Nothing was lost by the omission, as the only possible grounds were, that one partner could not dispose of the entire stock of the firm to secure or pay a debt; and that the transfer to the plaintiff was fraudulent and void on its face.

The first of these questions was decided by this court against the defendant in Mabbett v. White (12 N. Y. [2 Kern.], 443), and the last in Leitch v. Hollister (4 N. Y. [4 Comst], 211).

All the judges concurred.

Judgment affirmed.

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Porter, J.

—It was the right of either of the firm to secure the plaintiff, as one of its creditors, by a transfer of partnership property (Mabbett v. White, 12 N. Y., [2 Kern.], 443 ; Graser v. Stellwagen, 25 N. Y, 315).

The assignment, in this instance, was in the nature of a mortgage. It did not divest the entire title, but left a residuary interest in the assignors, which could be reached by their other creditors. Its primary purpose was to secure the payment of the debt, and the trust to account for the surplus was purely incidental. Such a trust is not within the condemnation of the statute, and such a reservation is not unlawful (Leitch v. Hollister, 4 Comst., 211 ; Curtis v. Leavitt, 15 N. Y, 141 ; Dunham v. Whitehead, 21 Id., 131).

The judgment of the supreme court should be affirmed.

Grover, J.

—No grounds were stated upon which the motion for nonsuit was made. Hence no question arising upon that motion can be entertained in this court. Nothing was lost by the omission, as the only possible grounds were, that one partner could not dispose of the entire stock of the firm to secure or pay a debt; and that the transfer to the plaintiff was fraudulent and void on its face.

The first of these questions was decided by this court against the defendant in Mabbett v. White (12 N. Y. [2 Kern.], 443), and the last in Leitch v. Hollister (4 N. Y. [4 Comst], 211).

All the judges concurred.

Judgment affirmed.

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Bluebook (online)

5 Abb. Pr. 250, 3 Keyes 454, 3 Trans. App. 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclelland-v-remsen-ny-1867.