
    Edgar L. Ryder, as Assignee, etc., Resp’t, v. John Duffy, as Sheriff, etc., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Assignment fob cbeditobs—Assignee.
    Immediate possession of the assigned property is taken by the assignee, where, directly after the execution of the assignment, the property passes into his possession, and the assignor exercises no control over it, save to assist in the sale of some of it.
    Appeal from a judgment in favor of plaintiff.
    
      William Homer (Nelson H. Baker, of counsel), for app’lt; Smith Lent and Charles Wesley, for resja’t.
   Barnard, P. J.

Edward Nolan on the 6th of July, 1892, made a general assignment to the plaintiff. The assignor was a grocer and his stock of groceries passed by the assignment. There was preferred in the assignment a debt of $1,000 to James 0. Driscoll for money loaned by Driscoll to the assignor as was' stated in the assignment. On the 12th of July, 1892, the sheriff by virtue of an attachment against the property of the assignor, took the property in question from the possession of the assignee. The sheriff justifies the seizure by an averment that the assignment was made by Nolan with intent to defraud his creditors and that the property was the property of the assignor at the time of the seizure. Upon the trial the assignment was proven and the fact that immediate possession of the assigned property was taken by the assignee; that the property was immediately advertised for sale at public auction. In the interval; some eight or ten days, the assignee, sold at private sale and the assignor aided in putting up goods sold at the request of the assignee, for which the assignee received the purchase price. The assignor was in and about the store up to the sale at public auction but had no control whatever.

There is, therefore, a complete failure of proof tending to show that an immediate possession was not taken and held by the assignee. The assignor’s wife is a sister of Driscoll. Before her marriage she was her brother’s housekeeper, and he owed her $1,000 for that service. He sent her a check for that sum which the sister handed over to her husband. Driscoll intended this $1,000 as a gift to the assignor’s wife, but she never so intended and never even knew of his intention. As the case stands, Driscoll owed his sister $1,000 for services. He sent a check which was received by the assignor. He intended this to be a present to the wife, but she knew nothing about it. Driscoll still owes his debt to his sister, and the assignor has never obtained any title to the $1,000.

The preference of the debt in the assignment is, therefore, just and legal, and the judgment should be affirmed with costs.  