Shepherd v. Burt
The Superior Court of New York City
This action was brought to recover damages for taking and carrying away certain goods which had formerly belonged to Mason the assignor, but which the complaint averred had passed to the plaintiff under the assignment.
Read the full summary
This action was brought to recover damages for taking and carrying away certain goods which had formerly belonged to Mason the assignor, but which the complaint averred had passed to the plaintiff under the assignment. The defendant, a creditor of Mason, had seized the goods under an attachment, and now upon the ground that the assignment was fraudulent and void as against' creditors, and that the plaintiff was a party to the fraud, moved under § 317 of the Code as last amended, that the plaintiff should file security for costs.
1Opinion of the Court
The judge said that he had considerable doubts whether the case was covered by the section, since the title of the plaintiff as a trustee was denied, and if the defendant prevailed there would be no estate or fund upon which the costs could be charged. He deemed it unnecessary, however, to decide that question, as he was clearly of opinion that whatever might have been the motives of the assignor, the facts disclosed by the affidavits were not such as could justify him in imputing bad faith to the plaintiff. The power of the court to require security, was purely discretionary, and ought not…
2Cases cited1 opinion
- People v. ComptonThe Superior Court of New York City · 1853
3Cited by4 opinions
- Hale v. MasonNew York Supreme Court · 1895
- Fagan v. StrongNew York Supreme Court · 1890
- Caccavo v. Rome, Watertown & Ogdensburg RailroadThe Superior Court of the City of New York and Buffalo · 1891
- Murphy v. TraversNew York Supreme Court · 1881