148 N.Y. 227 | NY | 1896
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *231 This action was brought to set aside an assignment made by the firm of Rice Brothers to the defendant Clancy for the benefit of their creditors. The trial judge found that the assignors had withdrawn moneys from the firm's funds in contemplation of making the assignment, either for themselves or for the payment of individual debts. He held this to be in law a fraud upon the creditors, for which, as a general rule, relief would be granted against the assignment; but the fact was not important, as the plaintiff had estopped himself from assailing the assignment. At a time previous to the assignment Rice Brothers had made a contract with the plaintiff, whereby they had undertaken to do all the steam fitting and plumbing in a certain building in the city of Rochester belonging to him. At the time of the assignment that contract had been partially performed and, at the request of the plaintiff, Clancy, the assignee, proceeded with its performance and the work was completed. The plaintiff was a creditor named in the deed of assignment to the extent of $500 and he was liable as indorser upon notes of Rice Brothers, held by the Central Bank of Rochester. Upon these notes the bank had recovered judgments against Rice Brothers and had assigned them to the plaintiff, who commenced this action, as such assignee of the bank's causes of action. The complaint was dismissed upon the trial, upon the ground, as stated in the conclusion of law found by the trial judge, "that the plaintiff having received a benefit under the assignment became a party to it and is estopped from impeaching it." In his opinion the learned trial judge held, looking merely at the fact that the assignee, at the request of the plaintiff, had proceeded in the performance of the work and had completed it, that thereby the plaintiff had received a beneficial result and had so recognized the assignee as to prevent him from impeaching the validity of the assignment.
While we think that this judgment should be sustained, we are not able to concur entirely with the learned trial judge in his reasoning that the mere completion of the contract by the assignee, at the request of the plaintiff, amounted to such an *232
adoption of the acts of the assignors in making their assignment, as to estop him from thereafter maintaining an action to set it aside. But looking at the other facts disclosed by this record, as we have the right to do in order to support the judgment (Ogden v. Alexander,
Upon these additional grounds, I think the plaintiff's complaint was properly dismissed upon the merits.
The other point, which the plaintiff raises in support of his appeal, that his position as assignee of the bank's judgments, through a transfer made after the time of his dealing with the assignee of Rice Brothers, would not be affected by the estoppel, I think, is satisfactorily answered in the opinion of the learned judge, who presided at the trial of this action. He was a creditor, recognized in the assignment when it was made, and the mere fact that the indebtedness to him may have been increased through the transfer of other debts of the insolvents does not affect the question. I agree with Mr. Justice BRADLEY that the estoppel arising from an effectual ratification of the assignment was personal to the plaintiff.
The judgment should be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed. *235