
    Jose Gomez et al., App’lts, v. William Hagaman et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 11, 1895.)
    
    Fraudulent conveyances—Preference.
    A failing debtor may prefer any of his creditors by a bill of sale to such an extent as his property will permit; the statute, limiting the amount of preferences, applies only to a general assignment for creditors.
    
      Appeal from a judgment, dismissing the complaint on the merits.
    
      Montignani, Mallory & Elmendorf (George H. Mallory, of counsel), for app’lts; George H. Stevens, for Samuel G. Wooster, Stedman, Thompson & Andrews (Arthur L. Andrews, of counsel), for resp’ts.
   Per Curiam.

It is now settled that a failing debtor may prefer any of his creditors by a bill of sale to such an extent as his property will permit; that the statute limiting the amount of preferences only applies to a general assignment for creditors. The conclusion reached by Parker, J., in London v. Martin, 79 Hun, 229 ; 61 St. Rep. 24, is clearly supported by the authorities cited in his opinion.

The only questions, then, to be considered, are of fact. After reading and carefully considering the evidence contained in the case, and the elaborate points presented by counsel, we have-reached the conclusion that we cannot properly reverse the findings, of the referee on the facts. There was testimony from which he was justified in determining that the firm of Samuel Stevens & Co. assumed the debts of Samuel Stevens, in his business, existing on April 1, 1887. Such an assumption may be established by facts- and circumstances, although there was no express agreement between the parties to that effect Peyser v. Myers, 135 N. Y. 599 ; 48 St. Rep. 825; Hannigan v. Morrissey, 37 St. Rep. 138. The facts and circumstances appearing in this case were sufficient to sustain the conclusion reached by the referee, and the evidence also upholds his finding that the bill of sale which this action is. brought to set aside was not executed with intent to hinder, delay, or defraud creditors. If the White debt mentioned in the bill of sale was not a copartnership, but an individual, debt of Samuel Stevens, that fact would not,, in our judgment, avoid the bill of sale as to Wooster and Hagaman; the evidence showing that they received it in good faith, to secure honest debts, and without any knowledge that White’s claim was not a firm debt.

We think it unnecessary to enter into a discussion of the questions of fact involved, and conclude that the judgment should be affirmed, with costs.  