Mechanics' & Traders' Bank v. Dakin

Sutherland, J.

My findings of fact, &c., show the ground upon which I dismiss the complaint, irrespective of the question of fraud, or of other questions in the case. The plaintiffs’ counsel appears to concede in his points that the action cannot be maintained as a judgment creditor’s bill or action, technically, but he insists that the action can be maintained as an action to remove a fraudulent obstruction out of the way of the plaintiffs’ execution. But if Dakin had never assigned the bond and mortgage, or if his assignment were declared fraudulent and void, the plaintiffs could not reach or sell the bond and mortgage, or the mortgage debt, by or under the execution. How then could or can Dakin’s assignment of the bond and mortgage be an obstruction in the way of the execution ? (See Beck agt. Burdett, 1 Paige, 305 ; McElwain agt. Willis, 3 Id. 505.)

As the assignment by Dakin to Jewell of the bond and mortgage, was good between the parties to it, however fraudulent it may have been as to the creditors of Dakin, I doubt whether the sheriff could attach the same, or the debt secured thereby, whefchey the sheriff’s proceeding under the attachment was not nugatory ; but if otherwise, it has been frequently held by this court that the lien acquired by the levy of an attachment under the Code, even on chattels alleged to have been fraudulently assigned, would not alone authorise an action to set aside the assignment as fraudulent, either before or after judgment in the attachment action. (Wilson agt. Forsyth, 24 Barb. 105; Brooks agt. Stone, 11 Abbott, 220; Mills agt. Block, 30 Barb. 552.) Indeed this follows from the decision in Reubens agt. Joel (13 N. Y. R. 488). There is nothing in the decision, or in either of the opinions in Fassett agt. Tallmadge, referred to by plaintiffs’ counsel, which favors the plaintiffs’ right to maintain this action.

The complaint must be dismissed as to all the defendants, with costs.