Van Alstyne v. Indiana, P. and Cleveland R. R. Co.

of January, 1857, at $75 a month, payable monthly; that he continued in their employment until the 15th of April, 1857, when he was paid in full to that day, and was at his own request and with the consent of the defendants, discharged from their employment, and went into the employment of another company; in whose employment he continued until September 1st, 1857; that on the last mentioned day, he tendered his services to the defendants, and tendered the same almost daily from that time to the end of the year 1857. The referee also found, as matter of fact, that the plaintiff sued the defendants, in November, 1857, on a complaint similar to the complaint in this action, for two months' wages, viz. for September and October, 1857; that the defendants putting in no answer, judgment was taken against them by default, and the amount of the judgment levied on execution.

The referee found, as matter of law, that the defendants were not estopped from showing in this action that the agreement for a year was vacated by mutual consent; that under the facts proved in this case, it was so vacated, and that the defendants were entitled to judgment.

H. Sacia, for the appellant.

L. Fairbanks, jun. for the respondents.

By the Court, SUTHERLAND, J. There was conflicting testimony on the question of fact, whether the agreement for a year was vacated by mutual consent. The referee found that it was, and that finding cannot be questioned on this appeal.

The other question is, were the defendants estopped by the record of the recovery against them in the former action, which was introduced in evidence on the trial, from showing, in this action, that the agreement for a year had been so vacated? The referee held as matter of law, that they were not. This was clearly right.

This action was not brought for the same cause as the

Van Alstyne v. Indiana, P. and Cleveland R. R. Co.

former one. The alleged cause of action in this suit was the non-payment of the stipulated wages for the months. of November and December; in the former action, the nonpayment of the stipulated wages for the months of September and October. The causes of action in both suits were founded upon the same agreement, but were not the same.

The defendants did not appear or answer in the former action, and of course did not set up the matter as to the agreement having been vacated by mutual consent, in that action, by way of defense; and that matter could not have been tried or passed upon in that action. Had the defendants appeared in the former action and put in a general denial, without setting up the matter as to the agreement having been vacated by mutual consent, by way of defense, it would not have been necessary for the plaintiff to prove that the agreement had not been rescinded or vacated, in order to recover in that action; it would not have been necessary for the plaintiff to go out of his case and prove a negative. The allegation, in the complaint in the former action, that the defendants had refused to pay the plaintiff for the months of September and October, or had rejected his services when tendered, "without any legal excuse," does not affect the question. Surely it would not have been necessary for the plaintiff to show whether the defendants had any excuse, or to raise the question whether they had any excuse.

The counsel for the plaintiff substantially takes the position, because the defendants chose, voluntarily and without being under any legal obligation to do so, to pay the plaintiff for the months of September and October, that therefore they are bound to pay him for November and December, although they now insist upon their legal rights.

In my opinion the cases cited by the counsel for the plaintiff have no application to the point in question; and the judgment should be affirmed with costs.

NEW YORK GENERAL TERM, February 4, 1861. Clerke, Allen and Sutherland, Justices.]

KNAUTH and KUHNE vs. BASSETT and others.

Although the law is now settled, by the decision of the court of appeals in Wilson v. Robertson, (21 N. Y. Rep. 587,) that the appropriation, by an insolvent firm, of partnership property to the payment of the individual debts of one of the partners, is fraudulent and renders the assignment void, as to creditors of the firm; yet an assignment which purports to be an assignment of all individual as well as of all partnership property, is not fraudulent and void on its face, where there is nothing appearing thereon to show that all the partners may not have had individual property, when the assignment was made, more than sufficient to pay their individual debts preferred by the assignment.

If in fact the assignment includes sufficient individual property of each partner to pay his individual debts directed to be paid by the assignee, such a direction will not render the assignment void.

It is, under such circumstances, for the assignors and their assignee to show, affirmatively and satisfactorily, that the individual property of each partner was sufficient to pay his preferred individual debts.

If that fact is not satisfactorily shown, the assignment will be beld to be fraudulent and void, as against judgment and execution creditors of the assignors.

Persons not made parties to a former action are not barred or estopped from raising, in a subsequent action, questions not raised or passed upon in the former.

A judgment creditor is not obliged to wait until the expiration of the sixty days within which an execution must be returned, before commencing an action to set aside an assignment executed by the judgment debtor. He may commence such action as soon as the execution issued upon his judgment has been actually returned.

Such an action is brought in time, if commenced while the assignee has yet in his hands, unappropriated, moneys belonging to the trust, which it is the object of the action to reach.

THIS

THIS action was brought by the plaintiffs, as judgment creditors of Bassett & Aborn, formerly copartners in business, to set aside an assignment executed and delivered by them to the defendant Thomae, on the 15th day of August, 1854. The complaint alleged the indebtedness of Bassett & Aborn to the plaintiffs, and their recovery of judgment thereon, on the 2d of January, 1858, for $3326.13; that executions were duly issued on such judgments, and have been severally duly returned unsatisfied; that on the 15th day of August, 1854, Bassett & Aborn, being then insolvent and unable to

Knauth v. Bassett.

pay the debts of the firm either out of their copartnership effects or their individual property, executed and delivered to the defendant Thomae the assignment, which is set out in hæc verba. This assignment was in trust to pay in fullfirst, the debts described in schedule A.; second, to pay in full the debts described in schedule B.; and lastly, to pay all other unpaid debts. Schedule A. has in it these words: "Elizabeth A. Havens of Florida, for money lent to R. W. Aborn, $100; Mary E. Tyler, of Rhode Island, for money rec'd by R. W. A. for her use, besides interest and upwards, $60." Schedule R. contains these words: "Isaac H. Bassett's note to Mary E. Chamberlain, besides interest, $900. Isaac H. Bassett's note to Lydia F. Arnold, about, besides interest, $200." The complaint further alleged that this assignment was made to hinder, delay and defraud creditors, and that it was void upon its face, among other reasons, "because it appropriates the interest of the said Aborn in the said copartnership property, and his individual property, to the payment of the individual indebtedness of the said Isaac H. Bassett, and because it appropriates the interest of the said Isaac H. Bassett in the said copartnership property, and his individual property, to the payment of the individual indebtedness of the said Aborn; that said individual indebtedness of the said Bassett & Aborn, and of each of them, was contracted long prior to the 21st day of December, 1853, when their said copartnership was formed;" and that the assignee had in his hands funds sufficient to pay the plaintiffs' debt; and prayed that the assignment might be adjudged fraudulent and void, and that the assignee might be decreed to pay the plaintiffs' debt out of the assigned estate. The defendant Thomae answered separately, that he had paid all the preferred creditors mentioned in schedule A. except Horatio Bassett; that he had no knowledge or belief as to the allegations of fraud in the complaint; that he heretofore commenced an action againt Horatio Bassett, praying for a construction of so much of the assignment as related to Horatio

Knauth v. Bassett.

Bassett, in which the court adjudged that the said Horatio Bassett was a preferred creditor, and entitled to be paid in common with other creditors of the same class; that an account was ordered which had been taken, by which it appeared that he, Thomae, had in his hands, as such assignee, $3246.30; and that a decree was entered in said action directing Thomae to pay such balance to Horatio Bassett, as a preferred creditor. Isaac H. Bassett answered separately, and denied the fraud; insisted upon his legal right to make the assignment; denied that the assignment appropriated his individual and copartnership property, as alleged in the complaint; averred that the firm of Bassett & Aborn were indebted to him in the sum of $10,000; that he was a creditor of the firm to that amount, and that it was indebted to him individually; that Aborn had individual property more than sufficient to pay his individual debts preferred in the assignment, and that he, Isaac H. Bassett, had individual property more than sufficient to pay all his individual debts, and those of Aborn; that Thomae has paid all the preferred creditors except Horatio Bassett; averred the proceedings in the action between Thomae and Horatio Bassett; that the plaintiffs have been paid a portion of their debt by receiving from the assignee a portion of the assigned estate, to wit, a parcel of goods, and that they received the same in part payment of their debt; that the assets of Bassett & Aborn exceeded their liabilities by over $20,000; that the individual creditors preferred in the assignment have released the assignee. The defendant Aborn answered separately, and denied the fraud; averred that he had individual property more than sufficient to pay his individual indebtedness preferred in the assignment; that the assets of the firm exceeded their liabilities, and that the plaintiffs have accepted and received from the assignee a parcel of goods in part payment of their debt. By a stipulation between the parties, the allegations of the complaint were admitted, as to—1. The copartnership of the plaintiffs and of the defendants Bassett & Aborn. 2. The recovery of judgVOL. XXXIV.

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