Hedges v. Bungay

¶1By the Court.*

¶2This is a controversy submitted without action under section 372 of the code.

¶3The plaintiffs had judgment, and caused levy to be made on certain property of Bowen, then judgment debtor ; before this levy, Bowen had made a general assignment for the benefit of creditors to the defendant *316under the act of 1860 (L. 1860, chap. 348, p. 594), but the bond of the assignee required by section 3 of that act to be approved by the county judge, and filed within thirty days, &c., had not been so approved or filed ; the reason given is that the bond was ready, but the judge was absent from the county ; the bond was filed after the thirty days without such approval. The case of Juliand v. Rathbone (39 N. Y., 369) governs the question here presented, and controls the case. The assignee did not take the title to the assignor’s estate until the bond was approved and filed, because of the peculiar language of section 3 of the act, which says that such security shall be given “.before he [the assignee} shall have power or authority to sell, dispose of, or convert to the purposes of the trust, any of the assigned, ■property.” And the amendment of this act by chap. 600, Laws of 1874 (p. 834) does not affect this provision. The plaintiffs by this levy acquired a lien which was not defeated by the existing assignment, and they should have judgment on the submitted case, with costs.