Nichols v. McEwen
New York Supreme Court
THIS was an action brought for the claim and delivery of ' personal property: The plaintiff claimed the property by virtue of an assignment executed to him by W. A. Allen, the former owner, in trust for the benefit of the creditors of the .said Allen, on the 8th of January, 1853. The defendant claimed to hold the same under a levy made thereon by him, on the 7th of February, 1853, upon an éxecution issued out of the supreme court, on a judgment against the said Allen, in…
Read the full summary
THIS was an action brought for the claim and delivery of ' personal property: The plaintiff claimed the property by virtue of an assignment executed to him by W. A. Allen, the former owner, in trust for the benefit of the creditors of the .said Allen, on the 8th of January, 1853. The defendant claimed to hold the same under a levy made thereon by him, on the 7th of February, 1853, upon an éxecution issued out of the supreme court, on a judgment against the said Allen, in favor of John Mott and others. On the trial the judge nonsuited the plaintiff, on the ground that the assignment was…
1Opinion of the Court
By the Court, Parker, P. J.
Two objections are made to the validity of the assignment. First, that the clause authorizing the plaintiff to sell and dispose of the property “ upon such terms and conditions as, in his judgment, may appear best, and convert the same into cash,” is an authority to sell upon credit, and therefore vitiates it, within the cases of Barney v. Griffin, (2 Comst. 365,) and Nicholson v. Leavitt, (2 Selden, 510. 1 Ker. 302.) But it is now well settled that such language will not be construed as authorizing a sale on credit. (Whitney v. Krows, 11 Barb. 198. Kellogg v.…
2Cases cited1 opinion
- Whitney v. KrowsNew York Supreme Court · 1851
3Cited by2 opinions
- Kyle v. HarveysWest Virginia Supreme Court · 1885
- Winn v. CrosbyThe Superior Court of New York City · 1876