Hardin, P. J. Principally upon the evidence of one of the assignors called as a witness by the plaintiff, as well as his testimony given in supplementary proceedings, the plaintiff relied at the trial to sustain the allegations of the complaint which, in effect, charge that the confessions of judgment made on the 17th of August, 1889, were part of a scheme on the part of the assignors to give preferences, in violation of chapter 503 of the Laws of 1887.
Inasmuch as the plaintiff called Feliz Klapetzy as a witness, he thereby vouched to the court that he was worthy of credence, and the plaintiff was not at liberty to impeach the witness.
In Runt v. Fish, 4 Barb. 324, it was held that “a party cannot be allowed to insist that his own witness is not to be believed.” In speaking of such a witness, Gridley, J., says, (page 331:) “The witness was doubtless strongly in the interest of the plaintiff, and, had he been called by the plaintiff, his testimony would have been subject to much just criticism. The defendants have, however, made him their own witness, and must take his testimony as he has given it.
Had the defendants not called this witness, that might have argued that the referee should have disregarded his testimony, if it had been inconsistent or improbable. But they cannot now do this. He has sworn that Mr. Hunt was a bona fide holder, and the defendants cannot be heard to insist that he is not to be believed.
They had the right, if surprised by his testimony, to show by other witnesses that the facts were otherwise; but they could not impeach their own witness, either directly or indirectly.” After reading the testimony found in the appeal-book, and carefully considering the same in the light of the ingenious and extensive criticisms made thereon by the learned counsel for the appellants, we are not inclined to disturb the findings of fact made by the trial judge based upon the evidence taken before him.
In Spellman v. Freedman, 7 N. Y. Supp. 698, in considering the effect of the general assignment act, it was said by Brady, J.: “It was evidently the intention of the legislature that, if a general assignment for the benefit of creditors was contemplated, it should embrace the disposition of all the debtor’s property at the time of the formation of the determination to make the assignment, and that it should not, in its broad and general effects, be anticipated by a partial and preferential distribution of his estate.
The right to the preference, in other words, must be exercised in the assignment, and not otherwise. ” The same court, in deciding Stein v. Levy, 8 N. Y. Supp. 505, seems to have been divided as to the effect of that decision.
A majority of the court, however, seems to be of the opinion that the assignment act “had no application to the ease of a judgment and the execution levied thereunder, and related only to cases of general assignment; that the provisions of said act only applied to the confessions of judgment where they constituted a part and parcel of a scheme resulting in a general assignment, whereby all the debtor’s property was devoted to the payment of his debts.” See, also, Berger v. Varrelmann, ante, 641.
In Wilcox v. Payne, 4 N. Y. Supp. 358, it was held that “judgments confessed immediately prior to a general assignment, although obnoxious to the statute, are not sufficient to render an assignment void.”.
However, as there is no finding of fact in this case that the confessions of judgment “constituted a part and parcel of a scheme resulting in a general assignment whereby all the debtor’s property was devoted to the payment of his debts, ” W'e are of the opinion that we need not consider and determine what acts, transfers, and liens created or judgments given by an assignor prior in point of time to the execution of a general assignment will be declared void, or will render an assignment subsequently made invalid. 2.
We have looked at the several rulings made upon the trial to which exceptions were taken, and we are of the opinion that they present no-such error as to warrant us in disturbing the findings of fact made. Judgment affirmed, with costs.
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