McClelland v. Remsen

Decided September 15, 1867

New York Court of Appeals · decided 1867-09-15

John McClelland sued George Remsen, sheriff of Kings, in the supreme court, for trespass in seizing plaintiff’s goods. Held: that the instrument was a mortgage, as distinguished from a general assignment in trust, and, therefore, was not void as to creditors; and observing the same distinction, it was within the power of one partner to make it, without the concurrence of the other. They accordingly ordered judgment for plaintiff.

Relies on Decker v. . Mathews · Leitch v. . Hollister

Decided 1867-09-15

¶1By the Court.

Porter, J.

¶2It was the right of either of the firm to secure the plaintiff, as one of its creditors, by a transfer of partnership property. Mabbett v. White, 12 N. Y. 315.

¶3The 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 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. *76Hollister, 4 N. Y. 211; Curtis v. Leavitt, 15 Id. 9,141; Dunham v. Whitehead, 21 Id. 131.*

¶4The judgment of the supreme court should be affirmed.

¶5All the judges concurred.

¶6Judgment affirmed, with costs.

¶7 A memorandum of opinion by GtBOVEB, J., to the same effect, was also filed.