Sutherland v. Bradner

• Decision Date: 29 October 1889
• Citation: 116 N.Y. 410,22 N.E. 554
• Parties: SUTHERLAND et al. v. BRADNER et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 410

22 N.E. 554

SUTHERLAND et al.

v.BRADNER et al.¹

Court of Appeals of New York, Second Division.

Oct. 29, 1889.

Appeal from supreme court, general term, fifth department.

This was an action brought by John L. Sutherland and Frances Sutherland, major, as executors, against Alonzo Bradner and Andrew J. Holden. On the 4th day of June, 1884, Alonzo Bradner executed, acknowledged, and delivered a preferential general assignment for the benefit of his creditors to Andrew J. Holden, as assignee, who on the same day executed and acknowledged an acceptance thereof, and delivered the completed instrument to the clerk of the county of Livingston, by whom it was duly recorded on that day. The assignor, by his assignment, preferred part of his creditors, dividing those preferred into four classes, and directing the payment in full of each class in its order, but provided that in case the assigned estate should be insufficient to pay some one of the classes in full, then the creditors named in such class were to be paid pro rata. The assignor, after making provision for the payment of the preferred creditors, provided: ‘Lastly, the said party of the second part shall return the surplus of said net proceeds and avails, after the payment of the said debts, demands, and liabilities, as herein provided, if any there shall be, to the said party of the first part, his executors, administrators, or assigns.’ The plaintiffs were not preferred in the assignment, and when it was made an action was at issue, and pending, in the supreme court, between them, as plaintiffs, and Alonzo Bradner and David McNair as defendants, in which the plaintiffs recovered June 16, 1884, a judgment, on contract against Bradner and McNair for $17,698.87 damages and costs, a transcript of which was on the next day duly filed and the judgment duly docketed in the office of the clerk of the county of Livingston, in which county Bradner and McNair then resided. June 17, 1884, an execution was issued to the sheriff of the county of Livingston, who had not returned it at the time of the trial of this action, being unable to collect it, or any part of it, by reason of said assignment. June 28, 1884, the assignor executed and acknowledged an instrument, which is called a ‘supplementary assignment,’ to his said assignee, referring to the original assignment, and reciting and directing as follows: ‘Whereas, it was intended by the party of the first part (the assignor) to provide for the payment of all of his creditors out of the avails of the property so transferred and conveyed, in whole or in part, as provided in said deed of assignment; and whereas, in copying the draft of said deed, the party of the first part, by mistake, and unintentionally, omitted to insert in the deed executed by him a clause authorizing the party of the second part (the assignee) therein to pay all creditors of the party of the first part, not specified in said deed as entitled to preference, out of any property or proceeds thereof remaining in his hands: Now, for the consideration mentioned in said deed, and fully to carry out the intention and purpose of the parties thereto, and to supply the omission, the party of the first part does hereby authorize and direct the said party of the second part, in case any property so conveyed and transferred to him, or the avails thereof, shall remain in his hands after paying and discharging the debts due to the creditors specifically named in said deed, and before any surplus shall be returned to the party of the first part, as in said deed of assignment provided, to pay all other debts of the party of the first part in full, if the said property, or avails thereof, be sufficient for that purpose, and, if not, to pay the same pro rata in proportion to the amounts of such debts.’ June 30th this instrument was delivered to the assignee, who on that...