Hurlburt v. Banks.

densome, though not unconstitutional, the legislature must correct it. Courts are powerless.

The injunction asked for is refused, with ten dollars costs of motion.

By consent, in order to present the questions involved speedily to the court of appeals, an order for a peremptory mandamus compelling the mayor to issue the bonds, was granted at special term by WESTBROOK, J., affirmed pro forma, next day at general term; and on appeal to the court of appeals, that court, in Dec., 1876, affirmed the order for a peremptory mandamus, and sustained the conclusions contained in the foregoing opinion, as to the constitutionality of the law directing the issue of bonds for the improvement.

PEOPLE ex rel. DAY v. JONES.

N. Y. Common Pleas; Special Term, November, 1876.

SUPPLEMENTARY PROCEEDINGS.

Proceedings to punish a third person for contempt in not complying with an order to appear and be examined, should be dismissed if the allegation in the original affidavit, that he has money or property of the judgment debtor, &c., was only on information and belief, without stating sources of information.*

It is an unnecessary hardship, and unjust to third persons having no interest, to be subjected to examination on such an affidavit.

Albert Day, having recovered judgment against one Lee, examined him in supplementary proceedings, and having ascertained that he was, or had been, an employee of the N. Y. Times, on a weekly salary, made affidavit that he was informed and believed that George Jones, the publisher of the Times, had property of the debtor to the amount of over $10, and thereon obtained

*As to how far the objection goes to the question of jurisdiction, compare Miller v. Adams, 52 N. Y. 409, aff'g 7 Lans. 131.

Haas v. O'Brien.

an order under § 294 of the Code, requiring Mr. Jones to appear and be examined. Mr. Jones not appearing, the creditor took proceedings to punish for contempt. In fact, there was nothing due to the debtor.

Albert Day, in person, for the application.
Austin Abbott, opposed.

VAN BRUNT, J.,-dismissed the proceedings on the ground stated in the head note.

HAAS v. O'BRIEN.

N. Y. Court of Appeals; September, 1876.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

A general assignment by an insolvent for the benefit of creditors, made under the act of 1860, c. 348, p. 595, and the acts amending the same, in good faith and without preference, is not void for contravening or defeating the bankrupt act.*

Louis Haas, as assignee in bankruptcy of P. Flanagan (adjudicated a bankrupt May 18, 1872), brought this action in the N. Y. superior court to set aside an assignment for benefit of creditors, made January 9, 1872, under the State law above mentioned. It did not appear from the appeal papers when the petition was filed, nor whether it was a voluntary or involuntary bankruptcy; but it seems to have been conceded on the argument that the petition was filed in time. It was also admitted that the assignment was made in good faith.

The superior court held the assignment void, and defendant appealed.

*To the contrary, see Macdonald v. Moore, p. 53 of this vol. As to jurisdiction of State court to entertain an action by the assignee in bankruptcy,-see Frost v. Hotchkiss, p. 27.

Produce Bank v. Morton.

1 Jacob A. Gross (Francis C. Devlin, attorney), for appellant.

Samuel Hand (Jacob & Koch, attorneys), for respondent.

THE COURT (opinion by MILLER, J.), citing Tiffany v. Lucas, 15 Wall. 410; S. C., 8 Bankr. Reg. 49; Thrasher v. Bentley, reported at p. 39 of this vol.; Cook v. Rogers, 31 Mich. 391; Beck v. Parker, 65 Pa. St. 262; S. C., 3 Am. R. 625; Hawkins' Appeal, 34 Conn. 548; Sedgwick v. Place, 1 Bankr. Reg. 204, 673; Langley v. Perry, 2 Id. 597; Mayer v. Hillman, 91 U. S. (1 Otto) 496; Smith v. Teutonia Ins. Co., 4 Chicago L. N. 130; In re Kintzing, 3 Bankr. Reg. 217; and disapproving (or distinguishing as founded partly on lack of evidence of good faith), Foster v. Hackley, 2 Bankr. Reg. 406; Re Smith, 4 Ben. 1 ; S. C., 3 Bankr. Reg. 377; Re Goldschmidt, 3 Ben. 379 ; S. C., 3 Bankr. Reg. 165; Spicer v. Ward, 3 Id. 512; Randall v. Sunderland, 3 Id. 18; Re Wells, 3 Id. 371; Re Reid, 1 Dill. 439; Hardy v. Bininger, 7 Blatchf. 262; S. C., 4 Bankr. Reg. 262; held as above.*

Judgment reversed, and new trial granted, costs to abide event.

PRODUCE BANK v. MORTON.

N. Y. Court of Appeals; November, 1876.

[Overruling 40 N. Y. Super. Ct. (8 J. & S.) 328.]

ASSIGNMENT For Benefit of CREDITORS.-CREDITOR'S ACTION.-EXECUTION.-APPEAL.-MOTION FOR NEW TRIAL.

Execution against all of several joint debtors, parties to the action, is

*Will probably be reported in 64 N. Y.

Produce Bank v. Morton.

sufficient foundation for a creditor's suit, notwithstanding a formal irregularity docketing the judgment only against those served. Since L. 1874, p. 824, c. 600,-providing for omission to file the schedules under an assignment for benefit of creditors,-delay to file them does not affect the validity of the assignment.*

A judgment in a creditor's suit vacating a conveyance as fraudulent, directing a delivery of the fund to a receiver, and payment of plaintiff's judgment, is final, and appealable to the general term, although a reference is ordered to carry it into effect; † hence, it seems, a motion for a new trial under section 268 of the code is not proper. To determine whether an appeal lies to the court of appeals, without leave, under L. 1874, p. 378, c. 322, interest due upon the judgment cannot be added, to make it exceed $500 exclusive of costs.

Plaintiff brought a creditor's action in the New York superior court against Joseph Morton, and others, and Austin Baldwin, their assignee for benefit of creditors, to set aside the assignment for lack of compliance with the act of 1860, and the amendments thereof.

The superior court, at special term, gave judgment for plaintiff. Defendant moved for, and obtained, at general term, an order for a new trial (reported in 40 N. Y. Super. Ct. [8 J. & S.] 328, rev'g 49 How. Pr. 277). Plaintiff appealed to this court.

D. Judson Newland (Newland & Sanxay), for appellants.

A. C. Fransoli and J. F. Mosher (Fransoli, Tilney & Mosher), for respondents.

Compare Thrasher v. Bentley, p. 39 of this vol., and cases there referred to, and Haas v. O'Brien, p. 173.

+S. P. in foreclosure, Morris v. Morange, 4 Abb. Pr. N. S. 447. Otherwise if the amount to be paid plaintiff was to be determined by the referee. Tompkins v. Hyatt, 19 Id. 534. Compare Weaver v. Barden, 49 Id. 286; Catlin v. Grisler, 57 Id. 363.

See Walker v. U. S., cited on p. 24 of this vol.

As to effect of a stipulation reducing the amount in controversy,see King v. Galvin, 62 N. Y. 238.

Produce Bank v. Morton.

THE COURT ruled as above.* -As to the appealability of the judgment and order, the opinion (RAPALLO, J.) remarked:-"But the point is made that the cause was not properly before the general term; that it was not a proper case for a motion for a new trial (section 268 of the Code). We are inclined to the opinion that this point is well taken, and that the judgment was final, and reviewable by appeal. There was nothing left to be judicially determined. The amount of the plaintiff's claim was ascertained, judgment was rendered that the assignment be set aside, that the assignee deliver over the assigned property to a receiver, and that the plaintiff be paid out of the proceeds the amount of his claim and costs. This was a final disposition of the whole controversy, and no further judgment was to be rendered. The machinery of a reference and receivership was for the sole purpose of carrying the judgment into execution, and not the foundation of any further judicial action in the case.

Judgment was entered July 21, 1875, and the sum directed to be paid plaintiff for principal and interest amounted to only $491.20. That judgment is all the appellant has at stake. A new trial has been ordered, and the object of this appeal is, by the reversal of that order, to restore the judgment. We think, in such a case, the amount of the judgment when entered must govern the question of appealability, and that interest accruing after its rendition cannot be added for the purpose of bringing it up to the requisite amount. According to our construction of the act of 1874, it prohibits an appeal from an order granting a new trial where the amount of the judgment or subject-matter in controversy does not exceed $500. In appeals from orders

* Will probably be reported in 63 or 64 N. Y.

The clause relied on is the amendment of 1867: "Where the decision filed under § 267, does not authorize final judgment, but directs further proceedings before a referee or otherwise either party may move for a new trial at general term," &c.