
    SPELMAN v. JAFFRAY.
    
      N. Y. Supreme Court, First District, Special Term ;
    
      October, 1888.
    1. Assignment for creditors; fraudulent judgments.] An action maybe maintained by creditors at large to restrain the sheriff who has lived upon the property of an assignor for creditors, under judgments confessed on the same day of the assignment, from disposing of the proceeds of the judgments; to have the judgments, declared void; and the property levied upon declared a part of the-estate in the hands of the assignee.
    
    2. Forms.] Form of complaint in such an action.
    Demurrer to complaint.
    The plaintiffs, Timothy M. Spelman and William C, Spelman, as creditors of Josephine M: Soussman, brought this action against Edward S. Jaffray and seven others, judgment creditor’s of Soussman, John Phillips, as assigneefor creditors of Soussman, Josephine M. Soussman, assignor,, and the sheriff of the city and county of New York, to set aside judgments confessed in favor of Jaffray and seven others, as being fraudulent and void because made at the-time of making an assignment for creditors by Soussman,. and as creating preferences in excess of that allowed by the statute ; and to restrain the sheriff from disposing of the proceeds of the judgments.
    
      The complaint, after alleging sale of goods by plaintiffs to defendant Soussman and non-payment therefor, .alleged:—
    II. That after the sale and delivery of the said goods as aforesaid, and on May 14, 1888, the defendant [name] duly executed, acknowledged and delivered to the defendant ¡[name] a general assignment of all her property, for the benefit of creditors, which assignment was thereupon accepted by the said [name] and was recorded in the office of the clerk of the city and county of New York on May 14, 1888, at 12:15 o’clock in the forenoon.
    III. That a copy of the said assignment is hereto annexed, and marked A, and made a part of this complaint.
    IV. That on the morning of May 14,1888, and prior to' the execution and delivery of the said assignment as aforesaid, while the defendant [name] was insolvent, and unable to pay her debts and liabilities in full; she confessed judgments in this" court as follows, to wit: [Here follows the statements and amounts of the confessions of judgments] which confessions' of judgment were filed in the office of" the clerk of the city and county of New York, and judgments entered thereon accordingly, as follows : The first of said judgments above mentioned, at seven minutes past ten o’clock in the forenoon of that day; the second of said judgments above mentioned; at eight minutes past ten o’clock in the forenoon of said day, and the last of said judgments above mentioned, at nine minutes past ten o’clock in the forenoon of said day : and that immediately after the entry of the said judgments as aforesaid,, executions therein were respectively issued to the defendant [name] as sheriff of the city and county of New York, against the property of the defendant [name] for the full amount of said judgments respectively, and that immediately prior to the execution and delivery of the said assignment the said defendant [name] as such sheriff, levied under the said executions upon the entire stock and property of the defendant in her said store at 313 Grand street in the city of New York.
    
      V. That copies of the said confessions of judgment, and of the judgments entered thereon as aforesaid, and of the said executions, are hereto annexed and marked respectively B, 0, D, E, F and G, and made part of this complaint.
    VI. That under such levies the defendant [name], as such sheriff, took possession of the said property immediately before the delivery of the said assignment, and now has possession of the same, and has advertised the same for sale thereunder on May 21, 1888.
    VII. That the plaintiff is informed and believes that the entire property of the defendant [name] at the time of the confession of the said judgments, and the making of the said assignment, was not worth three times the amount of said judgments, and that the payment and collection of the said judgments would consume more than one-third of the net assets of the defendant [name] owned by her at the time of the confession of the said judgments, and the execution and delivery of the said assignment, and that the said judgments were confessed, and the said executions issued, and levies made, in contemplation of the said assignment, and for the purpose of preferring the said persons in whose favor the said judgments were confessed, out of the property of the said defendant [name] in fraud of the said assignment, for more than one-third of the net assets of the said defendant [name], and to prevent the said assets from going into the hands of the defendant [name] as such assignee, and being distributed to the plaintiffs and the other creditors of the said defendant [name] pursuant to the statute in such case made and provided, and pursuant to the provisions of the said assignment, and are fraudulent and void as against the defendant [yiame], as such assignee.
    VIII. That prior to the commencement of this action the plaintiffs duly notified the defendant [name], of the fact that the foregoing judgments, executions and levies were fraudulent and void as against him as such assignee, and that the plaintiffs were creditors of the defendant [name], at the time of the execution of her said assignment, in .the-amount above stated, and requested the said [name], as such assignee to bring an action to set aside the same, which he refused. *
    Wherefore the plaintiffs demand judgment:
    I. That the said judgments, executions and levies be declared void as against the said defendant [name], -as assignee as aforesaid, and be set aside and vacated.
    II. That the defendant [name], as sheriff as aforesaid, be directed to turn over and pay to the said defendant [name], as such assignee, the property levied upon by him under the ■said executions, and the proceeds thereof to be applied pursuant to the terms and conditions of the said assignment.
    III. That pending the determination of this action the defendants, except the defendant [name], as such assignee, their attorneys, agents, employees and deputies, be restrained and enjoined from in any way disposing of or interfering with the property so levied upon as aforesaid, and the proceeds thereof.
    IV. That the defendant, except the defendant [name], as such assignee, their attorneys, employees and deputies, be restrained and enjoined, by a judgment of this court, from in any way interfering with or disposing of any of the said property and the proceeds thereof, except to turn the same •over to the said [name], as such assignee, to distribute pursuant to the terms of the said assignment.
    To this complaint two of the defendants, judgment creditors, demurred on the ground that it did not state facts sufficient to constitute a cause of action.
    
      Bl/umenstiel c& Hirsch, for the demurrer.
    
      Douglass c& Minion, for the plaintiffs, opposed.
    
      
       See note on fraudulent preferences, on p. 327 of this volume, and the two preceding cases and the next following case.
    
    
      
       See the statute, on p. 308 of this volume.
    
   Andrew, J.,

overruled the demurrer and directed, judgment for the plaintiffs, but rendered no opinion.  