
    Am B. Schofield, Resp’t, v. La Fayette C. Scott et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Assignment—Feaud.
    It is not necessary to show in order to avoid an assignment that the assignee was in complicity with the assignor in the fraud or chargeable with knowledge of the fraudulent intent of the assignors.
    2. Same—Declarations of assignor.
    Evidence of declarations by the assignor after the assignment, tending to charge the assignee with knowledge of the fraud is not admissible.
    3. Same—Effect of filing verified claim.
    The filing by the plaintiff of a verified statement of his claim can have no effect upon the rights of the plaintiff already asserted in an action to set aside the, assignment, nor can it have the effect of a stipulation in the • action.
    Appeal from a judgment entered on the report of a referee.
    
      W. H. Nourse, for app’lts; Frank Ramsey, for resp’t.
   Dwight, J.

The action was in the nature of a creditor’s bill, to set aside a voluntary assignment on the ground of fraud. The assignment was made by the defendants Mc-Tighe and Carringer, who were partners in business, and as such were debtors in failing circumstances. The defendants Scott and White were the assignees, named in and who accepted the assignment, ostensibly for the benefit of creditors. They were, also, partners in business, and as such, creditors of the assignors; and the debt due to them was, aside from wages due to employees, the only one to which preference was given in the assignment. The plaintiff was also a creditor of the assignors and had exhausted his legal remedies, for the collection of the debt due him, before the commencement of this action. The fraud alleged was the concealment and withholding from the operation of the assignment, of assets of the debtors, with intent to hinder, delay and defraud their creditors. The evidence abundantly established the fact of such suppression and disposition of assets, and warranted the inference of fraudulent intent on the part of the assignors. There was some evidence which tended to charge the assignees with knowledge of such fact and intent, but the referee found, in accordance with evidence to the contrary, and acquitted the assignees of knowledge of the fraud and of fraudulent intent.

The latter finding has no effect to save the assignment from the effect of the fraudulent act and intent of the assignors. The assignment being a voluntary one, the assignees are not entitled to the character of bona fide purchasers for value, and it was not necessary to show, in order to avoid the assignment, that they were in complicity in the fraud or chargeable with knowledge of the fraudulent intent of their assignors. Rathbun v. Platner, 18 Barb., 272; Griffin v. Marquardt, 17 N. Y., 28.

Some evidence was received of declarations by the assignors, after the assignment, tending to charge the assignees with guilty knowledge,. The evidence was not-properly admissible but, since the referee found the fact against such evidence, the error was immaterial and the exception may be disregarded.

Some months after the commencement of this action the plaintiff, having been served with a printed copy of theassignee’s notice to creditors to present their claims, caused a verified statement of his claim to be presented to the assignees. This proceeding can have no effect upon the rights of the plaintiff already asserted in this action and put in issue by the answers of the defendants. It was done without the advice of his attorneys and cannot have the effect of a stipulation in the action. The plaintiff took nothing by the proceeding and asserted nothing which was inconsistent with the allegations of her complaint.

The referee’s findings of fact seem to be supported by the evidence and to support, in turn, his conclusions of law. There is no exception in the case which points to any material error.

The judgment should be affirmed, with costs, payable' out of the. assigned estate.

All concur.  