McClelland v. Remsen , 3 Abb. Ct. App. 74 ( 1867 )

By the Court.

Porter, J.

It 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.

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

The judgment of the supreme court should be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

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