Dudensing v. Jones

Truax, J. It is unnecessary for me to determine whether Travis had the authority to make the assignments in question or not. Conceding that he had the authority, still the assignments cannot stand. I am of the opinion that the evidence shows that the corporation was insolvent at the time the assignments were made and that they were made in contemplation of such insolvency and for the purpose of. giving- the assignee a preference over the other creditors of the assignor, and were prohibited both .by the statutes of the state of Hew Jersey-and the statutes of the state of New York. See Queen v. Weaver, decided March 24, 1899, by the .Appellate Division, First Department. Hor am I called upon to determine whether the defendant Jones had or had not a valid lien upon the assets of the corporation because of the levies made under his attachments! This action does not affect such levies (if any), but affects only the assignments made by the defendant cor- ' poration. I am also of the opinion thát the appointment of the receiver was according to law. The facts in this case in that respect are substantially the same as those in Logan v. McCall Publishing Co., 140 N. Y. 447. It may be that the effect of this decision is to give to one creditor the assets of the corporation to the detriment of the other creditors of the corporation, but as between the plaintiff- in .this action and the defendant Jones, there is no distinction. Jones by his attachment was trying to do what he now claims the plaintiffs in this action are trying to do by this action. For the reasons above stated I am of the opinion that the assignments should be set aside and the defendant Jones should account to the plaintiffs for the property received by him under such assignments. Judgment is ordered accordingly in each action, with costs and an extra allowance of 5 per cent, upon the amount involved in each. Judgment accordingly in each action, with costs and an extra-allowance of 5 per cent.