
    Alice L. Oishei, App’lt, v. Frank T. Gilbert, as Sheriff, Resp’t.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed March 24, 1890.)
    
    Conversion.
    One O. made an assignment for creditors and the assignee sold a portion of the assets to plaintiff’s husband who had no previous interest in goods or O.’s business except as a creditor. The balance of the assigned goods were left with plaintiff’s husband for sale. The latter subsequently assigned his stock of goods to plaintiff. Defendant, on an execution against plaintiff’s husband, among others, sold property belonging to the assignee, who afterwards gave to plaintiff a bill of sale thereof and of any cause of action in his favor against the sheriff. Held, that as to the property transferred by the husband the transaction could be properly inquired into, but that plaintiff was entitled to recover for that transferred by the assignee, as her husband’s creditors could have no interest therein.
    Appeal from judgment in favor of defendant
    
      JS. 0. Randall, for app’lt; Lewis & Moot, for resp’t.
   Titus, J.

This action is brought against the defendant, as sheriff of Erie county, to recover the value of some groceries, tobacco, scales and other articles taken from the store of the plaintiff on Seneca street by the defendant on an execution in favor of Max Marx against Achille J. Oishei for $88.62.

It appears that Charles Oishei commenced the grocery business on the 4th day of February, 1886, at Mo. 75 Seneca street, and continued until the 11th day of December, 1886, when he made a general assignment of all his goods and property to George F. Brownell, as assignee. The assignee took possession of the property, and made an inventory, and proceeded to dispose of it, at first by private sale under an order of the court, and then at public auction. A major portion of the goods were sold at public sale to Achille J. Oishei on the 4th day of January, 1887, leaving a portion of them in the hands of the assignee unsold. The purchaser continued the business in his name, and the articles unsold by the assignee were left in the store under an arrangement by which they were to be sold by Achille J. Oishei for the assignee. In the meantime the store was removed to Mo. 73 Seneca street, and the business continued there until the 1st day of July, 1887, when Achille J. Oishei made a bill of sale of his stock of goods to the plaintiff, his wife.

It appears that prior to the purchase of these goods from the assignee, Achille J. Oishei had not been engaged in the grocery business in Buffalo, and had no interest in the stock of goods, or the business of Charles Oishei, except as a creditor.

On the 27th day of October, 1887, the assignee made a bill of sale of the goods remaining in his hands, and any cause of action in his favor against the sheriff for wrongfully taking them, the items mentioned being six boxes of soap, four chests of tea, twelve pounds of Lucky Stripe tobacco, and a quantity of other tobacco and cigars.

In April, 1887, after Achille J. Oishei had gone into the groeery business, Max Marx sold him a quantity or tobacco for which the judgment of $88.62 was obtained against him. The sheriff, although forbidden by the assignee, made a levy under his execution, and sold the property above described belonging to the assignee.

The facts here stated with respect to the property held by the assignee and the manner of his title are undisputed and conceded by the counsel for the defendant in his statement of the facts of the case. It is claimed by the plaintiff’s counsel that the sheriff had no right to levy upon the goods obtained by her, either from her husband or from the assignee, and that the trial court should have directed a verdict in her favor for their value. As to the property which came to the plaintiff by bill of sale from the assignee, it is difficult to see what right the creditors of Achille J. Oishei can have in it. In order to successfully defend as to that property taken by the sheriff, it must be made to appear that Achille J. Oishei had some interest in the assigned property and that the assignment was a fraud upon his creditors. Otherwise they would hav.e no interest in the property assigned by Charles Oishei, and in case that assignment was declared void' for fraud at the suit of the creditors of Charles Oishei, the creditors of Achille J. Oishei could not levy upon it Southard v. Benner, 72 N. Y., 424; Spring v. Short, 90 id., 538.

The creditors of Achille J. Oishei are not interested in the property of his wife with which he has had nothing to do and which was obtained by means independent of him.

The right ,_of the wife to hold property is as perfect and absolute as that of any other person, and whether she has paid the full consideration, or whether it came to her without paying anything, are matters which do not concern her husband’s creditors, so long as it does not come through, or in some way from him, and is no more subject to levy and sale for his debts than the property of any other third person.

Max Marx was a creditor of Achille J. Oishei and became such after the assignment to Brownell. He had no interest in the property assigned by Charles Oishei and his creditors cannot interfere with that property in the hands of the assignee. They have no standing in court and could not, in any event, succeed to the right of Charles Oishei if his assignment should be declared fraudulent and void. Bowlsby v. Tompkins, 18 Hun, 219.

As to the property which Achille J Oishei bought and owned, the rule is different The transaction with his wife, with reference to it, may be inquired into, and if the jury should believe, from sufficient evidence, that the transfer to the plaintiff was made to defraud his creditors and to put the property beyond the reach of execution, then, as to such property, the defendant would be protected.

The jury having practically found in favor of the defendant on that question, the court cannot say that there was not sufficient evidence to sustain the finding, as the case does not purport to contain all the evidence bearing upon that question. Mullinhoff v. Scherer, 17 N. Y. State Rep., 387.

It seems to me, therefore, that the plaintiff was entitled to recover for the value of property taken, which belonged to the assignee of Charles Oishci, and the jury should have been instructed to give the plaintiff a verdict for its value.

A new trial should be ordered, with costs to abide the event.

Beckwith, Oh. J., concurs; Hatch, J., not sitting.  