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Complaint by a judgment creditor, in the nature of a credi
tor's bill, against judgment debtor and assignees, to set aside an assignment as fraudulent, and obtain satisfaction of judgment.
[ After setting forth judgment, docketing, issuing of ececution, and return unsatisfied, as in No. 34, add, ]
That subsequently, on or about the 6th of March, 1848, the said plaintiff filed with the clerk of the city and county of New-York his bill of complaint in the Supreme Court, on the equity side thereof, against the said defendant B., for the purpose of compelling payment and satisfaction of the money due on said judgment, commonly called a creditor's bill, praying, among other things, that an injunction might issue to restrain said defendant from disposing of his property or any part thereof. That an injunction was duly issued, pursuant to the prayer of said bill, a copy of which injunction is annexed to, and forms part of, the complaint.
That, as plaintiff is also informed and believes, said injunction was personally served, with a copy of said bill of complaint, on said defendant B., on the 6th day of March, 1848, and the same has never been vacated or set aside, but continued to remain, and still remains, in full force and effect.
That, as plaintiff is further informed and believes, subsequent to the actual service of said writ of injunction on said B., and in violation and contempt thereof, he, the
1 The action to set aside an assignment may be sustained by a judgment creditor, without making all the other creditors parties; though it is otherwise in an action to establish and carry out the assignment. (Pleadings 156.)
said B., made, executed and delivered to the defendants, J. M. and J. A., on or about the 17th day of July, 1848, an assignment of all his property, real and personal, a copy of which is annexed to, and forms part of, this complaint; which assignment has been duly recorded, as plaintiff is informed and believes, in the counties of NewYork, Albany and Columbia.
That prior to the execution of said assignment, and at the time of the service of said injunction, as plaintiff is also informed and believes, the said defendant B. had real estate in each of said counties of New-York, Albany and Columbia, and personal property sufficient to satisfy said judgment, or some part thereof.
The plaintiff further alleges, on his information and belief, that, although the defendants, J. M. and J. A., were parties to the execution of said assignment, yet that neither of them have ever undertaken to do any act or thing, individually, under or by virtue of said assignment, for the purpose of executing the trusts thereof, or closing up the estate so assigned to them; but that, on the contrary, during all the time that has elapsed since the execution of said assignment, as plaintiff is also informed and believes, the said B. has had the sole management and control of said property so assigned, either as the pretended agent of said assignees, or otherwise, and has been allowed by the said assignees to manage the same, to receive the rents, issues and profits of said real estate, and to sell and dispose of said personal property, and to convert the proceeds thereof into other personal property, or apply the same, and the rents, and profits of the real estate, wholly and entirely as he thinks proper, either to his own individual use, or to the payment of such debts and creditors as he chooses to prefer, in fraud of said assignment and rights of the other creditors.
That a portion of said real estate consists of a farm of land in the county of Columbia, containing about 200 acres, on which is a large amount of personal property, as plaintiff is informed and believes, consisting of horses, wagons, cattle, stock, crops, farming utensils, &c., of the estimated value of one thousand dollars and upwards, in the possession of a person ( whose name is unknown to the plaintiff) pretending to be a tenant of said assignees, but really employed by and under the entire control, direction and management of said B., and that said B. receives from said tenant the rents, issues and profits, or share of the proceeds of said farm, and applies them, as he sees fit, to his own individual use, or to the payment of such debts as he chooses to prefer, whether accruing subsequently or prior to said assignment.
That some portion of the goods, chattels and personal property, now on said farm, were upon said farm and the property of said B. at the time of said assignment; and the said B. had then a tenant in possession.
That ever since said assignment, for a period of four years and upwards, the farming operations of said farm have been regularly carried on by a tenant, or hired man in possession, under the control of said B., in the names of said assignees; the crops and produce of said farm regularly sold ; the stock and farming utensils kept up, portions thereof, from time to time, being exchanged or sold, and others purchased ; and all under the management and control of said B., as though he were the owner thereof, but under color of said assignment, and in the name of said assignees; and that said assignees have not, nor have either of them, taken any step towards the settlement of said assigned estate, or the sale of said real and personal property, with a view to the execution of the trusts created by such assignment. All of which allegations the plaintiff states upon his information and belief. Wherefore the plaintiff charges that said assignment is fraudulent and void, and made with intent to delay and hinder creditors, and he prays the judgment of the court that the said assignment may be declared fraudulent and void, and be set aside, and that a receiver be appointed, with the usual power, to take into possession the said personal property, and receive the rents, issues and profits of the said real estate, and be directed to apply so much of said rents, issues and profits, and of the proceeds of said personal property, as may be necessary to the payment and satisfaction of the plaintiff's judgment, and lawful interest thereon, with the costs of these proceedings; and, in the mean time, that the defendants, and each of them, may be restrained from collecting or receiving said rents and profits, or selling, transferring, assigning, or in any way disposing of any debts or demands, goods, chattels, things in action, real or personal property, or effects of said defendant B., in the hands of or under the control or direction of either of said defendants, whether in their own names or hands, or in the hands or names of any other person, for either of said defendants ; or for such other or further relief as to the court shall seem just, with costs of this action.
This allegation is unnecessary, and, in strictness, improper, as being merely the statement of a conclusion of law. I have, however, retained it as stated in the complaint as originally prepared for use.
By a creditor, on behalf of himself and all other creditors,
under a deed of trust or assignment against an assignee, also a creditor, charging him with neglect of duty and with receiving moneys, and applying same to his own use. Praying for an account and a division of the moneys received by the assignee, and for the appointment of a new trustee in his place.
Title of the Cause.
The above named plaintiffs, on behalf of themselves and all other creditors of the defendant, J. S. P., who shall come in and contribute to the expenses of this action, complain of the above named defendant, and allege the following facts constituting their cause of action :
That, on or about the B. D., being in embarrassed circumstances and unable to pay his debts, and being desirous of applying his property and effects to the payment thereof, so far as the same would go, in a just and equitable manner, and being indebted to the plaintiffs as well as the defendant, and other credi
"A creditor, seeking to set aside an assignment, need not make all the other creditors parties ; though it is otherwise, where the creditor seeks to establish, and carry out the assignment. ( Bank of British North America v. Suydam, 6 How., 379; see Pleadings, 156, 172.) All persons claiming an interest in a fund, are necessary parties to an action for an account and distribution of it. In such cases, however, the action may be brought as above, in the name of one or more, for the benefit of themselves and all others. So, in other cases, where the question is one of a common interest or the parties are numerous. See remarks upon the provisions of the Code, and the practice in such cases. (Pleadings, 123-127.)