Page:Federal Reporter, 1st Series, Volume 3.djvu/100

 WEHL ». WALD. 93 �Wehl V. Wald, Assignee, etc. �{Circuit Court, 8. D. JfTm York. , 1880.) �1. Bawkrxjptct — Assignee — Pbiob Assionmbnt. — An assignee m banfc- ruptcy cannot avoid a voluntary assignment in part only, �Wallace, D. J. The plaintiflF is the assignee of the Net- ters, under a voluntary general assignment, for the benefit of creditors, made December 26, 1877. Within six, months after the assignment the.Netters filed their petition in bank- ruptcy, and were thereafter adjudicated bankrupts, and the defendant was appointed their assignee in bankruptcy. The plaintiff, as assignee of the Netters under the voluntary as- Bignment,and the defendant, as their assignee in bankruptcy, both made elaim to a sum of money deposited with the firm of Sternberger & Co. in trust for the Netters. The plaintiff brought this suit against Sternberger & Co. to recover the fund, and thereupon the latter obtained an order of inter- pleader, ■whereby the present defendant was brought into the action. �The present action involves the single question whether the voluntary assignee bas the better title to the suni in dis- pute than the assignee in bankruptcy. Undoubtedly the voluntary assignment was void at the election of the assignee in bankruptcy as a transfer in contravention of the bankrupt act. In re Biesenthal, 15 N. B. E. 228 ; McDonald, Assignae, V. Moore, 15 N. B. E. 26; Platt v.Preston, 19 N. B. E. 241; Belden v. Smith, 16 N. B. E. 302. But the assignee in bank- ruptcy bas not obtained a decree setting aside the voluntary assignment; and in order to prevail here he must establish the proposition that the voluntary assignment was not merely void at bis election, but so absolutely void that the plaintiff's title under it can be assailed and defeated collaterally. No authority is cited sustaining this proposition, and it is not tenable under any reasonable construction of the bankrupt act. �The statute declares that prohibited transfers "shall be void," and that the assignee in bankruptcy "may recover the ����