84 N.Y. 386 | NY | 1881
The plaintiff claims under a general assignment for the benefit of creditors, which the defendant insists is void on its face by reason of an unlawful authority conferred upon the assignee. The instrument contains a general grant and conveyance of all the property and choses in action of the assignor, and empowers the assignee "to sell and dispose of the said real and personal estate, and to collect the said choses in action, with the right to compound for the said choses in action, taking a part for the whole, when he shall deem it expedient." A literal and rigid construction of this language would justify the claim of the appellant that authority was given to compromise all debts due the assignor, as well those which were good for their entire amount, as those which were doubtful and precarious. If we were compelled to accept this interpretation, it would be our duty to declare the instrument void, for it would be an authority to waste the fund. But we are satisfied that it is not our duty to adopt this construction. It is difficult to conceive of any fraudulent motive or purpose on the part of the assignor which would be aided by such an authority. The consequent *390
loss would be injurious to the assignor, and in no possible respect an advantage. The waste permitted would tend only to increase the balance of uncanceled debt remaining to hamper his action after the close of the trust. As sought to be construed it is literally an authority to waste the assets devoted by the assignor to the payment of his debts. Acted upon, it could only injure both the creditors and the assignor and by no possibility benefit either. We should not accept such an interpretation unless compelled by plain and inflexible provisions. Two rules should guide us to the proper result. The meaning and intention of the assignor is to be gathered from the whole instrument, and where two different constructions are possible, that is to be chosen which upholds and does not destroy the instrument. (Townsend v. Stearns,
We do not think the recent legislation, relating to general assignments for the benefit of creditors, affects our conclusion. (Laws of 1877, chap. 466, § 23.) Before that enactment the assignee could always apply to the court for its advice on a question of compromise. (In re Croton Ins. Co., 3 Barb. Ch. 642; Anonymous v. Gelpcke, 5 Hun, 251.) The act of 1877, in this respect, is merely cumulative, and extends to the County Court an authority in the given case necessary to the complete exercise of its jurisdiction. Nothing in the assignment, as we interpret it, in any manner conflicts with the authority conferred by this statute on the County Court.
It is further objected that the judge erred upon the trial in excluding the declarations of Doyle, the assignor. The sheriff made his first levy upon the stock of goods on January 16th. Doyle was then in the store. The assignment to plaintiff was made and accepted on the 2d day of January, and the inventory was made within two or three days thereafter. The assignee took immediate possession, and did not employ Doyle, in any capacity, in the store. The defendant's answer alleges that the assignee was in possession when the levy was made. On this state of facts the defendant's counsel asked the question, "at the time you made the first levy, what did Doyle say on the subject of having sold goods from the store prior to the levy?" The question was excluded, and the defendant excepted. A further offer was made to prove similar declarations. They were inadmissible because made after the assignment and delivery of possession under it. (Cuyler v. McCartney,
We are of opinion, therefore, that no error was committed on the trial, and the judgment should be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Judgment affirmed.