
    CHARLES H. BENNER, et al., Respondents, v. THOMAS KILPATRICK, et al., Appellants.
    
      Action by attachment creditor and sheriff against debtor of attachment defendantsaid defendant, and assignee for benefit of said debtor's creditors—Finding that assignment “was made" equivalent to finding that it was duly achnmledged—Failure of assignee to answer in such action, effect of.
    
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 13, 1887.
    Appeal by defendant from judgment entered upon findings by the court, after a verdict of jury upon framed issues.
    The complaint averred that in certain actions by plaintiff Benner against one Adams, the sheriff, the co-plaintiff here, levied an attachment upon a demand, based upon work and materials furnished, due to Adams, the defendant. in the attachment, by Kilpatrick the defendant here; that plaiñtiffs had complied with sections 677 and 678 of the Code of Civil Procedure, and the complaint demanded judgment against the defendant -Kilpatrick in the amount of the demand against him. The complaint averred that, since the levy of the attachment, the said Adams assigned said indebtedness of Kilpatrick to his firm, composed of himself and one Cobb, both being made defendants here, and that after-wards the firm made a general assignment, for the benefit of their creditors, to the defendant Leroy, and said Leroy thereupon accepted the trusts under the said assignment. Leroy, assignee, etc., did not appear in this action. The attachment was levied upon the indebtedness in question, on January 27. The general assignment was in suit made upon November 10, 1884.
    The court ordered judgment for the plaintiffs against the defendant Kilpatrick.
    The Court at General Term (after stating the facts as above), said: “ If, at the time the attachment was levied, as is claimed, upon the debt due by the defendant, the defendant creditor had transferred his claim, there was no property of the attachment defendant upon which to levy. The debt would be due to the transferee, and not to the sheriff or the attaching creditor.
    “ In this case, the complaint avers that on November 10, 1884, the firm of the defendant ‘ made a general assignment for the benefit of their creditors, to the defendant, Henry W. Leroy, and said Henry W. Leroy thereupon accepted the trusts under said assignment/ The complaint had averred that the levy was made before the day of the making of the assignment. The answer of defendant Kilpatrick admitted the assignment was made for the benefit of creditors on the day named in the complaint, but averred that what was claimed by the complaint to have been the levy., was made after the assignment was made, and on or about January 27, 1885. The learned judge found that on November 10, 1884, the defendants, Adam & Cobb; made a general assignment for the benefit of creditors to Henry W. Leroy..
    “It is urged that this does not show that the chose in action was transferred to the assignee because it did not appear that the execution of the assignment was acknowledged as is required by the statute. In my opinion averring and finding that an assignment was made, necessarily means a valid and operative assignment. It is clear .that the plaintiff did not think of contesting the validity or operation of the assignment. They were content in their belief that the levy was made before the assignment was made. The judge, however, found as a fact that the levy was made after the assignment. Thére was no proof upon the trial that the assignment was fraudulent against creditors.
    “ It is further argued that there is no proof that this particular debt was transferred by the assignment. If it were a general assignment, it transferred what property the assignors had. If the assignors did not have this particular claim, it must have been because they had transferred it before they made the assignment. This would be fatal to the present action based upon the assumed levy in proof.
    “ It is supposed that, because the assignee was made a defendant and did not answer, that the defendant should pay to the plaintiff what he owes to the assignee. There was no issue made between the defendants. If any were made between the plaintiff and the assignee as defendant, no judgment has been entered determining the merits of the issue between them. In fact, the complaint only claimed such rights as would belong to the plaintiffs if the assignee took the claim subject to the lien of the attachment. As against the defendant appearing, the default of the assignee was not the equivalent of an assignment of the claim. He had still a right to maintain that the plaintiffs acquired no right against him by the levy they made. If the assignee has not transferred the claim, of course he can hereafter enforce it against the defendant Kilpatrick.
    “In my judgment the action was only one at law on a contract for the payment of money in which the defendant was entitled to a jury trial. And if it appeared that, before the levy, the defendant in the attachment had assigned the claim in action, the complaint should have been dismissed.”
    
      Kelly & Macrae, for appellants.
    
      Paddock & Gannon, for respondents.
   Opinion by Sedgwick, Ch. J.; Truax and Dugro, JJ., concurred.

Judgment reversed; new trial ordered, with costs to abide event.  