158 Misc. 261 | N.Y. Sup. Ct. | 1934
The only manner in which the property of a debtor may be assigned and distributed for the benefit of creditors is in accordance with the provisions of the Debtor and Creditor Law; otherwise this law would just be an empty collection of words to be observed or not observed according to the whims and fancies of the debtor and his select group of creditors. All decisions based on fact arising prior to April, 1925, are obsolete. The Debtor and Creditor Law contains minute specifications of each step in an assignment for the benefit of creditors. The Appellate Division of this department has amplified the statute law by a code of rules, which must be observed in the handling of debtors’ estates.
It is quite evident that thé debtors began to proceed under the Debtor and Creditor Law. Section 3 of that law prescribes the form of an assignment for the benefit of creditors. The assignment is not in conformity with that law. It is not acknowledged. This “ is a prerequisite to the passing of title to property covered by a general assignment for the benefit of creditors.” (Rogers v. Pell, 154 N. Y. 518, 529.) Evidently realizing this, and apparently at a subsequent date to the original execution of the assignment deed, some one, while the paper was still in the debtors’ control, changed it by inserting therein the following words, “ all moneys not accepted by creditors to be returned to the assignors.” The purpose of this is clear. The debtors, or some one acting for them, realized that they had no proper assignment deed under the Debtor and Creditor Law, and sought to make out a deed of trust recognized at common law.
Judgment for plaintiff. Submit findings of fact and conclusions of law on notice.