
    Charles Philip Easton, as Assignee for the Benefit of Creditors of Jonathan A. Frazee and William Y. Frazee, Composing the Firm of Frazee & Co., Appellant, v. Durland’s Riding Academy Company, Defendant. Eliza H. McCullough and Others, Respondents.
    
      Assignee for creditors may obtain an attachment for goods of the assigned estate before he has filed his bond.
    
    Upon the execution- and. delivery of a general assignment the legal title to the property of the assignors vests in the assignee, and he is entitled to the possession thereof and to enforce hy attachment the collection of any claim assigned to him. The language of the act forbidding the assignee “to sell, dispose' of or convert to the purposes of the trust,” any of the property until he has given a bond, does not prevent such action hy attachment upon the part of the assignee.
    Appeal by Eliza H. McCullough and others, junior attaching creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1896, denying their motion to vacate an attachment obtained by the plaintiff against the defendants.
    
      A. J. Dittenhoefer and F. B. Jennings, for the appellant.
    
      John M. Bowers, for the respondents.
   Ingraham, J.:

The affidavits are clearly sufficient to justify the attachment. The plaintiff swears that he is entitled to recover the sum claimed over and above all counterclaims known to plaintiff.- This is the only fact as to counterclaims that the Code requires should be stated. The sum demanded must be over and above counterclaims known to plaintiff, not known to others. Here there was also an affidavit' of William Y. Frazee, one of the plaintiff’s assignors, in which he states that the affidavit of plaintiff is true to deponent’s knowledge, and that plaintiff is justly entitled to recover for the causes of action set forth in said affidavit “ the sum claimed to be due plaintiff by said affidavit, with interest as set forth in said affidavit, over and above all counterclaims, discounts and set-offs.” Annexed to that is an affidavit of one Fuller, an employee of plaintiff’s assignor, who has been familiar with the sales of merchandise of the defendant and he knows that the balance of $12,000 is due by said defendant to plaintiff as the purchase price agreed to be paid for said merchandise, and that the statements of the plaintiff as to sales and amount due him are correct.

These affidavits taken together are clearly sufficient to justify the granting of the attachment.

The criticism upon these affidavits by counsel for the moving party is hypercritical and unsubstantial. It is quite clear that both Frazee and Fuller intended to verify the sale of the goods by plaintiff to defendant and to state that the allegations in plaintiff’s affidavit as to such sale were true to their own knowledge.

The fact that the plaintiff, as assignee, had failed to tile his bond as assignee before commencing the action, is no ground for vacating this attachment. Upon the execution and delivery of the assignment, the legal title to the property in the assignor vested in the assignee. The legal title vested in. him from the execution and delivery of the assignment. Having thus the legal title he was entitled to the possession of the'.property assigned to him and entitled to enforce any of the remedies proper for the owner of property to obtain possession of it. This claim against the defendant, upon which he bases his suit, thus became vested in the assignee, and he became entitled to take possession of it and collect it, unless the General Assignment Act (Laws of 1877, chap. 466) restricts his right to take possession.

Section 5 of the General Assignment Act provides that “the assignee named in any such ¿ssignment shall, within thirty days after the date thereof and before he shall have any power or authority to sell, dispose of or convert to the purposes of the trust any of the assigned property, enter into a bond,” etc. The language “to sell, dispose of or convert to the purposes of the trust” does not include taking possession of the property assigned to him to preserve the same; nor is there anything in the section that prevents the legal title vesting in the assignee.^ By the use of the word “ convert,” the Legislature evidently intended to restrain the assignee from paying any of the money or disposing of any of the property assigned to him for the purposes of the trust until he should have tiled his bond. But to say that he could not, take possession of the property to preserve it would be to allow the property to be at the risk of any one taking it during the period within which he is able to give a bond. To say that an assignee could only take the possession of a chose in action and could not take any measures to enforce it, so that the amount due could be recovered for the estate, would in many cases, as in the case at bar, render the chose in action of rio value.

We think the order below was right and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  