MATTER OF TRUE

MATTER OF TRUE. N. Y. Common Pleas; Special Term, January, 1878. Assignee fob Benefit of Cbeditobs.—Attachment.—Bill in Equity. Where an assignment for the benefit of creditors has been made, an attachment, obtained by a creditor on the ground that the assignor has fraudulently disposed of his property, can be levied only upon the property claimed to have been fraudulently assigned, and not upon its proceeds. All the estate, right, title and interest, claim and demand of all and singular the respective parties to the aforesaid proceedings in partition, of, in, and to all, &c. All the right, title and interest of A B in the hereinafter described premises, and also said premises, viz. It is more usual and more acceptable to purchasers, and equally a compliance with the statute, to draw the granting part of the deed in the common form, to the end of the description, and then insert the statute clause as addition. The following are precedents pursuing this method. - Also all the interest of A B and C D in and to the premises above described. Also hereby granting and conveying all the right, title and interest which the said defendants (naming a part), and all or any other of the defendants in said above entitled action had at the time of the execution of the mortgage described in the complaint in said action, and at the commencement of said action or thereafter acquired in or to said premises. And also all the right, title and interest in the above described premises and property, or in any part or parcel thereof, of all and any of the defendants in said action, viz.: (naming them). The above conveyance, including the title and interest of A B, the .owner of the equity of redemption of the above described premises, ' at the time of filing the notice of pendency of action in the herein-before mentioned action. And also all the estate, right, title and interest which A B, the mortgagor, had of, in and to the premises aforesaid, at the date of the record of said mortgage, and also all the estate, right, title and interest of, in and to the premises aforesaid, which each and every defendant in the action aforesaid had therein at the date of the entry of the judgment aforesaid. Such proceeds can only be reached by creditors by an action in equity against the assignee, after they have exhausted their legal remedies. Moneys which are received by the collection of things in action assigned, are regarded as proceeds within this rule. Motion by assignee for benefit of creditors for payment to himself of money of trust estate. This was a motion made by Edward True, assignee of Foley & Co., for the benefit of creditors, to have his attorney pay over to him moneys of the trust estate collected by him. It appeared that after the assignee qualified, he employed David Leventritt, Esq., to collect bills and accounts which had come into the hands of the assignee as part of the assets of Foley & Co., the assignors. The attorney objected to paying the moneys over, on the ground that the moneys he had collected and the bills which he as yet had not collected, had been attached in his hands by a creditor of the firm of Foley & Co. M. M. Budlong, for assignee. David Leventritt, in person. Peter Cook, for attaching creditor. See Butler v. Sprague, 66 N. Y. 393. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. The attachment of Thomas Hanley, a creditor of the assignors of Foley & Co., which was issued by the marine court on the ground that Foley & Co., had fraudulently disposed of their property, can be levied only upon the property claimed to have been fraudulently assigned, and not upon its proceeds (Lawrence v. Bank Republic, 35 N. Y. 320; Lanning v. Streeter, 57 Barb. 33; Campbell v. Erie R. R. Co., 46 Id. 540; Greenleaf v. Munford, 50 Id. 543 ; McElwain v. Willis, 9 Wend. 569). In this case the attachment was levied on two classes of property in the possession of David Leventritt, attorney of the assignee, viz : 1, moneys collected from debtors of the assignors, upon claims placed in Mr. Leventritt’s hands by the assignee for collection ; and, 2, claims against other debtors of the assignors, uncollected. The proceeds of collected claims are to be regarded in the same light as proceeds of sales of property. When the claim is uncollected the debt may be levied on under the attachment, but when the debt has been paid before the attachment is issued nothing remains which is the subject of levy, and the creditors of the assignors can only reach the proceeds by action in equity against his assignee after exhausting their legal remedies. It follows, therefore, that whatever moneys had been collected by the attorney for the assignee before the attachment was issued, are not the subject of attachment, and must be paid over by Mr. Leventritt to the assignee.