
    John McClelland, Respondent, v. George Remsen, Sheriff of Kings county, Appellant.
    Assignment by one partner, of partnership effects to a creditor, in trust to dispose of the same, apply proceeds to payment of assignee’s claim, and pay over residue to firm.
    Held, to be an assignment in the nature of a mortgage, and the reservation in the trust not unlawful.
    Appeal from the Supreme Court. The action was for trespass in seizing goods of the plaintiff., The defendant claimed to justify under a judgment and execution in favor of William E..Howe against William McClelland and Elizabeth Hasluck, alleging that the property seized belonged to one or-both of the defendants in the execution.
    The cause was tried at the Kings Circuit before Mr. Justice Lott, and resulted in a verdictx for the plaintiff of $394.55,
    It appeared on the trial that on the 1st of February, 1860, or prior thereto, Elizabeth Hasluck, a married woman, formed a partnership with Wm. McClelland in the liquor business in Brooklyn, and that they conducted it in the firm name of Wm. McClelland & Go. On the 2d of June, 1860, they were indebted to the plaintiff, John McClelland, in the sum of $357.00, for liquor and cigars sold and delivered to the firm.'
    On that- day-Wm. McClelland, in the name of the firm, executed an instrument transferring to John McClelland the goods and other property of the firm, upon the trust that he should convert the same into cash, and after 'satisfying this debt of $357 with interest, and the charges and expenses incident to the assignment, should pay over the balance of the net proceeds to the firm. Attached- to the instrument was the bill, the payment of which it was intended to secure. Some weeks afterward, the bill remaining unpaid, the plaintiff went to the store, demanded and received possession of the goods and locked them up. Subsequently an execution was delivered to the defendant, who seized the property as that of the assignors. The judgment, under which it was issued, was confessed by Mrs. Hasluck, and she assumed to confess it for McClelland as well as herself.
    The judge held that the seizure was not justified, and directed a verdict for the plaintiff, to which the defendant excepted. This decision was sustained at General Term in the second judicial district, and the defendant appealed to this court.
    
      N. F. Waring, for the appellant.
    
      James Noy, for the respondent.
   Porter, J.

It was the right of either member of the firm to secure the plaintiff, as one of its creditors, by a transfer of partnership property. (Mabbett v. White, 2 Kern. 443; Grazer v. Stellwagen, 25 N. Y. 915.)

The assignment, in this instance, was in the nature of a mortgage. It did not divest the entire title, but left a residuary interest in the assignors, which could be reached by their other creditors. Its primary purpose was to secure the payment of the debt; and the trust to account for the surplus was purely incidental. Such a trust is not within the condemnation of- the statute, and such- a reservation is not unlawful. (Leitch v. Hollister, 4 Comst. 211; Curtis v. Leavitt, 15 N. Y. 149; Dunham v. Whitehead, 21 id. 131.)

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.  