5 N.Y.S. 378 | N.Y. Sup. Ct. | 1889
It has been held in this district, in several special term cases (Riessner v. Cohn, 1 N. Y. Supp. 161, May, 1888; Bank v. Clark, Id. 207; and Spellman v. Soussman, post, 6 N. Y. Supp.) that voluntary conveyances, made contemporaneously with the making of a general assignment, are to be regarded as part of the assignment; and if the preferences thus given are void in whole or in part, the assignee may maintain an action to prevent the enforcement of such conveyances or liens, and, if he neglects to do so, a creditor,' as a cestui que trust under the assignment, may bring suit to preserve the property in aid of the assignment. This action is brought on the theory mentioned, and the allegations of the complaint are apt for the purpose. The ctftifession of the seventeen judgments and the delivery of the three chattel
The motion for change of venue must also be granted. The judgments affect real estate in Saratoga county, and the action is local. It is too late now for the plaintiffs to reform their action, and change its character, even if they could do so. They must do what would be required of the assignee, viz., seek full and not partial protection for the assigned estate, and it is doubtful if they can be permitted now to abandon any part of the necessary relief. At all events the character of the action cannot be changed by a disclaimer or stipulation or concession of one side only so as to make it triable in any other county than that in which the real estate is situated. Acker v. Leland, 96 N. Y. 383; Wyatt v. Brooks, 42 Hun, 502.
Sec. 613. An injunction order shall not he granted to stay proceedings upon a judgment for a sum of money, unless the party applying therefor shall pay into court the full amount of the judgment, including interest and costs, or give an undertaking in lieu thereof, and also give an undertaking to pay the party enjoined 'all damages and costs which may he awarded him.
Not reported.