Millerr Mille.. Campbell v. Foster (35 N. Y. 361), in that it is not instituted by a receiver appointed in supplementary proceedings, but by a judgment creditor who, following Judge WRIGHT's intimation in the case cited, now makes the direct "issue upon the amount necessary for the debtor's support." In that case, the reporter states, "Six judges affirm on the ground that the fund cannot be reached." It is not intimated that the six judges expressed the opinion that the surplus income derivable from the fund could not be reached in a proper suit and with proper averments. In this respect, the pleader in the present complaint not only accepts Judge WRIGHT's suggestions, but he directly follows Graff v. Bonnett, 31 N. Y. 9, 15, where HOGEBOOM, J., remarks,-"If the interest of the debtor in this property is only subject to the claims of his creditors in a particular contingency, and then only to a limited extent, to wit, on the report of a surplus over and above an amount necessary or proper for his maintenance and support, we cannot infer that such surplus existed, and it was the office and duty of the pleader, by proper averments, to present such fact in the complaint." The present case is distinguishable, too, from Hann v. Van Voorhis (5 Hun, 12 N. Y. Supreme Ct. 425),* in the fact which is here distinctly averred by the plaintiff, and admitted because not denied by the trustee, that a surplus actually exists. While the trustees are silent on this subject, the defendant, Miller, is seemingly evasive. At all events, his denial is not distinct and specific. The averment is, that "there is a surplus in the hands of the executors and trustees belonging to said [plaintiff's husband], and which he is entitled to receive, of not less than two thousand dollars." * Reported in 15 Abb Pr. N. S. 79. Miller v. Miller. The denial is of "a surplus now in the hands of said executors and trustees amounting to two thousand dollars;" and this is coupled with an averment "that there is no surplus in their hands." It will be observed that the denial is of a surplus generally, not of a surplus" belonging to said [plaintiff's husband]," and "which he is entitled to receive." But even if he had met the averment squarely, the injunction would not be dissolved because the beneficiary, without furnishing the court with facts or figures, believes his wants to be in excess of the accumulation, and thus feels himself justified in formally denying that in a legal sense, and as he understands it, a surplus exists. Under such circumstances, the injunction should be retained until the issue on that head can be properly tried. These views are based upon the treatment of the plaintiff as an ordinary judgment creditor. Whether that is her just position before the court, is certainly a question which is worthy of consideration. Her judgment is not at law, but in equity, and it is a judgment by which a faithless husband is required to make provision for the maintenance of his children, as well as for the woman he has wronged. Are his children to be treated as judgment creditors also? A rule under the protection of which such a defendant might enjoy the income of one million of dollars quite as securely as the income derivable from the fund in question, while his children of tender years, and former wife, are suffered to want for the necessaries of life, does not seem to have been contemplated by any of the cases, and as an original question, the court should refuse to sanction such injustice, until admonished by an appellate tribunal, that there is no distinction between such an equity judgment and that obtained at law by an ordinary contract creditor. Thrasher v. Bentley. The injunction must be limited to enough of the surplus income to cover the plaintiff's judgment with interest and the costs and expenses of this action (say two thousand dollars), and as thus limited, it must be continued until the hearing. Ten dollars costs of this motion to the plaintiff. THRASHER v. BENTLEY. New York Court of Appeals, 1875. BANKRUPTCY.-ASSIGNMENT FOR BENEFIT OF CREDITORS. The bond of an assignee for benefit of creditors was approved, not by the county judge, but by the special county judge. In the assignee's action to recover assets,-Held, 1. That the approval was valid. 2. Were it otherwise, the assignee might still recover assets, though he could not apply or convert them.* Abandonment of a parol contract may be made by consent not amounting to an express agreement.† This action was brought by plaintiff, as an assignee under an assignment for benefit of creditors, to recover on an account for goods sold, &c., by his assignor, to the defendant. The assignment was dated and acknowledged, November 27th, 1871; the assignee's acceptance of the * There is a brief memorandum of this case in 59 N. Y. 649. On the same subject, see the next case, p. 47. These cases are so often inquired for, that they are presented here in full. See MacDonald v. Moore, the next case but one; also Hedges v. Bungay, 16 Abb. Pr. N. S. 313, 316; S. C., 3 Hun, 594; Produce Bank of N. Y. v. Baldwin, 49 How. Pr. 277; Kercheis v. Schloss, Id. 284. † See also Hand v. Williamsburgh Ins. Co., 57 N. Y. 41; Myers v. De Mier, 52 N. Y. 647; aft'g. 4 Daly, 343; Ackerman v. Voorhies, 33 Super. Ct. (1 J. & S.) 487; Westlake v. Bostwick, 35 Id. 256; Fullager v. Reville, 3 Hun, 600. Thrasher v. Bentley. trust, November 28th, 1871; a bond by the assignee, and justification, dated November 28th, 1871, was approved by the special county judge, but there was nothing to indicate absence or inability of the county judge, and the approval bore no date. The bond was filed December 1st, 1871. Demand of the sum sued for was made by the assignee, on December 1st, 1871; before suit was brought. The complaint in the suit was verified December 22nd, 1871; the answer was verified December 30th, 1871. The date of the service of the summons or appearance of the defendant did not appear. The principal defence was a set-off, or counterclaim for use and occupation of premises of the defendant, occupied by the assignor, and a claim that the indebtedness sued for was incurred in an agreement that it should be applied on a claim for money paid to the assignor, by defendant, under a subsequently abandoned agreement for purchase of lands. The original agreement was by parol. Deeds and mortgages were executed agreeably to it, but were held back undelivered by reason of the purchaser not being ready to pay all he had agreed. The referee held that the agreement had not been rescinded for default, but abandoned by mutual consent; and hence the agreement to apply the price of the goods sold upon the purchase price of the lands was superseded, and the former might be recovered. The supreme court, in an opinion by MULLIN, P. J., printed in 2 Suprm. Ct. (T. & C.) 309, held, on the question as to the objection that the bond was not approved by the proper officer, that the assignment was not rendered wholly void ab initio thereby. During the thirty days from the date of the assignment, in which to file the bond, the title must be in the assignee, so that the legislature contemplated that the title should Thrasher v. Bentley. pass, but until a proper bond was filed, the assignee had no authority to sell, dispose or convert for the purpose of the trust any of the assigned property (Laws of 1860, ch. 348, § 3). Collecting the assigned choses is not a conversion of them within the meaning of this section. The objection that any assignment for benefit of creditors was necessarily void for conflict with the bankrupt law, was overruled. Defendant appealed from the judgment. J. M. Dunning, for the appellant.-I. The assignment was void under the bankrupt act of the United States and should not have been received in evidence. 1. The bankrupt act suspended the statute of 1860, providing for an assignment by a debtor and the distribution of his assets among his creditors from the time the act went into operation, June 1, 1867. (a) It has been held, and such is the law, that the bankrupt act suspended the insolvent laws of the several States (Exp. Eames, 2 Story, 322, 326; Chamberlain v. Perkins, 51 N. H. 39; Sturges v. Crowninshield, 4 Wheat. 122, 196; Comr. v. O'Hara, 6 Am. Law Reg. N. S. 765; Day v. Bardwell, 97 Mass. 246; Meekins v. Creditors, 19 La. An. 497; Martin v. Berry, 37 Cal. 208-222). These cases hold in reference to that subject that the law of Congress is supreme and paramount. That the State law is within the purview of the act of Congress and must yield, and is therefore suspended. That the two systems act upon the same subject-matter, the same persons, both debtors and creditors, and have the same object in view, the equal distribution of the debtor's assets among his creditors, and that both systems cannot go on without collision, and that it would be inconsistent with that uniformity which it was the object of the constitution to establish to allow them to stand together. (b) The same reasoning, and the same principles apply to the law of 1860, under which the assign |