Adams v. Davidson (10 N.Y. 309, 1851)

Gray, J.

The defendants claim title to the property in question under an assignment made by Brown to the defendant Davidson, on the 20th of July, 1843. In order to establish their title under this assignment as against the subsequent levy made by the plaintiff Adams, by virtue of the execution issued upon the decree in favor of the plaintiff Bathbone against Brown, it is indispensable that it appear that the assignment was accompanied by an immediate delivery to Davidson, and followed by an actual and continued change of possession by him of the property assigned, or that it be made to appear that the assignment was made in good faith, and without any intent to defraud the creditors of Brown. (2 R. S., 2d ed., 70, § 5.) The only evidence to be found in the case that the assignment was followed by an immediate delivery and actual change of possession of the assigned property, is the evidence of Geough, a clerk with Davidson, in the store of the defendants Corning & Horner. About eight o’clock in the evening on which the assignment was made, this witness was requested by Davidson to go with him to the store of Brown. On the way to the store, Davidson told him “ to pay attention and recollect what he heard.” After he got to the store, where he found Brown and his clerk Griffin alone, Brown told Griffin that he had made an assignment to Davidson. Davidson waited until Brown had shut up the store, when he took the key of the store and told Griffin lie would give him orders next morning, and then returned with the witness to the store of the defendants Corning & Horner. Nothing further is heard of Davidson until after the levy made by the execution in favor