FIFTH DEPARTMENT, DECEMBER TERM, 1887. put on foot the chattel mortgage, intending that it should be colorable only as between themselves, and for the illegal purpose of hindering, cheating and defrauding the creditors of the mortgagors. The assignee, as trustee of the property for the benefit of the creditors of the assignor, cannot take advantage of the omission of the mortgagee to file his mortgage, as required by the statute, and for that reason claim that the same should be set aside in a suit prosecuted by him for that purpose, under the provisions of the act of 1858, chapter 314. This question has been so recently considered in this court that it is only necessary to refer to the cases for the reason upon which the conclusion is founded. (Niagara County Bank v. Lord, 33 Hun, 557; Steward v. Cole, 43 id., 164.) The assignee made no case for relief of any kind, and the complaint was properly dismissed as to him. The The case made by the plaintiff Dorthy is based upon an additional fact, and presents some different legal questions. findings of the referee on the question of fraud, as alleged in the complaint, in the making and delivery of the chattel mortgage, is equally conclusive on the plaintiff Dorthy, as it depends upon the same state of facts; and if he is entitled to any relief, it urust be upon other grounds. In January, 1887, the plaintiff Dorthy became the owner, by purchase and assignment, of two separate and distinct claims of indebtedness against the firm of Neudahl and Holwede, upon which he commenced suits and recovered judgments-upon one claim for $175 and costs and upon the other for $333.47. Upon the first judgment execution had been issued and returned wholly unsatisfied at the time of the commencement of this action; and upon the last-named judgment execution was in the hands of the sheriff of Monroe county at that time. The indebtedness upon which the said judgments were recovered arose after the giving of the chattel mortgage, and before the same was filed. The contention of the appellant Dorthy is, that as to him the chattel mortgage was absolutely void, for the reason that the same, or a true copy thereof, was not filed as required by the statute. The act of the judgment debtors in disposing of their title and interest in the property embraced in the chattel mortgage, prior to FIFTH DEPARTMENT, DECEMBER TERM, 1887. the recovery of the judgment against them in favor of Dorthy, deprived him of the relief he seeks by the prosecution of this action. The assignee, from the time the assignment was executed and delivered, became the owner of the property, and of all the estate, legal or equitable, which the assignors had in the property at the time of the assignment. The judgment debtors had no such remaining interest in the assigned property as to permit the execution to become a lien thereon, and so long as the assignment remained in force none of the judgment creditors could levy upon or sell any of the assigned property. For these reasons the judgment creditors sustain no such relation to the property included in the mortgage as would permit them to maintain an action to set aside the mortgage as void. This question was distinctly presented and considered in Sullivan v. Miller (40 Hun, 516), which is an authority that we should follow in the disposition of this case, and as to the point now under consideration we fully concur in the opinion as reported. It was held, in Spring v. Short (90 N. Y., 538), that in a creditor's suit, brought for the purpose of removing a fraudulent obstruction to the collection of the debt out of the debtor's property, the plaintiff must show that the removal will enable his judgment to attach upon the property. As long as the property embraced in the mortgage remained in the possession of the mortgagors, although the debt secured thereby was past due and remained unpaid, they had the right of redemption on payment of the debt secured by the mortgage, and all the title and interest of the mortgagee would then terminate. This equity of redemption was transferred to the assignee, and if, in any proceedings instituted by any party, the mortgage should be declared to be null and void, the effect would be to enhance and enlarge the estate of the assignee. Dorthy was one of the creditors provided for in the assignment, and he had a right to demand payment of his debt out of the avails of the assigned property, as provided by the terms of that instrument. The assignee had the undoubted right to use the funds in his hands for the purpose of redeeming the property covered by the Servis mortgage, and thereupon a complete title thereto would have vested in him, as of the date of the assignment. In this manner the creditors of the assignors would realize the value of the mortgaged property after payment of the debt for which it was pledged when the assignment was made. FIFTH DEPARTMENT, DECEMBER TERM, 1887. The point made by the learned counsel for Dorthy that his case may be distinguished from Sullivan v. Miller (supra), for the reason that, when the assignment was made, Servis, the mortgagee, had a leviable interest in the property, as the debt secured was past due, while in the case referred to the debt had not matured at the time the assignment was made, and the mortgagor continued to have a leviable interest in the property. This circumstance does not change the legal principles involved, for the reason that an equity of redemption remained in the mortgagors, although the debt secured was past due. Servis remained a creditor of the assignors, and they had devoted all their property to the payment of their debts, including the one they owed Servis, and if the asssignee had paid the latter his debt in full out of the avails of the property, other than that embraced in the mortgage, it cannot be doubted but that the title to the property would have in equity become vested in the assignee. The act of Servis in taking the property from the possession of the assignee did not, in and of itself, terminate the interest of the assignee in the property, although the act of Servis in taking the same was lawful. Judgment affirmed, with costs. SMITH, P. J., HAIGHT and BRADLEY, JJ., concurred. Judgment affirmed, with costs THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NICHOLAS KRANK, APPELLANT Excise law, chapter 628 of 1857 —a sale of liquor by a person without a license made on Sunday violates the provisions of section 21 of the said act but not those of section 13. Upon the trial of the defendant upon an indictment charging him with having sold strong and spirituous liquors, in quantities less than five gallons, to one Henry Vezie on July third, he was convicted on proof showing that the sale was made to Vezie on July fourth, which was Sunday. Held, that the variance between the day alleged and the time proved, as the day on which the offensc was committed, should be disregarded People v. Lavin (4 N. Y. Crim. R., 547) distinguished. FIFTH DEPARTMENT, DECEMBER TERM, 1887. That the conviction should be reversed upon the ground that the defendant was indicted and tried for the offense of selling strong and spirituous liquors, in quantities less than five gallons, without a license, in violation of the provisions of section 13 of chapter 628 of 1857, while the proof showed that he was guilty of another and distinct offense not charged in the indictment, namely, of selling strong and spirituous liquors on Sunday in violation of the twenty-first section of the said act. APPEAL from a judgment of the Court of Sessions, for the county of Orleans. The indictment contained three counts. In the first, it was charged that on the 3d day of July, 1886, the defendant sold strong and spiritous liquors, in quantity less than five gallons, to divers persons, to the grand jurors unknown, without having a license therefor; in the second count, he is charged with having on the same day sold strong and spiritous liquors, in quantity less than five gallons, to one Henry Vezie, and divers persons, to the grand jurors unknown, without having a license therefor; in the third count, he is charged with having sold liquor on the same day, in quantity less than five gallons, to one Henry Vezie, and divers persons, to the grand jurors unknown, without having a license therefor. In the first and second counts the sale is alleged to have been against the provisions of the "act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16, 1857; in the third count the charge is general, as being against the form of the statute in such cases made and provided. The defendant was convicted, and thereupon he was sentenced to be confined in the county jail for the period of thirty days and to pay a fine of $100. From the judgment this appeal was taken. C. J. Church, for the appellant. W. P. L. Stafford, district attorney, for the respondent. BARKER, J.: The proofs show that the defendant was guilty of making one sale only, and that was to Henry Vezie, the person named in the second and third counts of the indictment, as the person to whom the sale was made. The indictment charged that the sale took place on the third of July, and the proof was, that it was made on the fourth of July, which last named day was Sunday. FIFTH DEPARTMENT, DECEMBER TERM, 1887. The defendant makes the point, that the variance between the time alleged and the time proved, as the day on which the offense was committed, is such as to amount to a failure of proof sustaining the charge set forth in the indictment. The rule relative to a variance as to time is not so strict as that. The cases all hold that where the offense charged may have been committed on the day stated in the indictment as the day on which the offense took place, the variance may be disregarded when the day named in the indictment is, in fact, so near the day on which the offense was committed, as in this case. The rule on this subject is now regulated by statute. Section 280 of the Code of Criminal Procedure is as follows: "The precise time at which the crime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime." This was substantially the rule adopted by the courts before the enactment of the statute. (People v. Ball, 42 Barb., 324.) We are cited to the case of The People v. Lavin (4 N. Y. Crim. R., 547) as an authority in support of the defendant's contention. There the indictment was for selling spirituous liquors on Sunday, May 18, 1884, and the proof was that the sale took place on Sunday, April 20, 1884, and the court held that the variance was fatal, one of the judges dissenting. In that case it was essential to support a conviction, that the people should prove that the offense took place on a Sunday. Although the proof established a sale on a Sunday, there is some reason in support of the argument that the variance was fatal. It was essential, to constitute the offense for which the defendant was convicted in that case, that it should occur on a particular day in the week, and for that reason it was held, by a majority of the court, that the proofs should sustain the charge as to the very day mentioned in the indictment, and for that reason was brought within the exception mentioned in section 280, above quoted. The offense charged in this case was for a violation of the thirteenth section of the act of 1857 (chap. 627), regulating the sale of intoxicating liquors. The defendant contends that, as it appears that the sale which he made took place on Sunday, he should have been acquitted, as the indictment does not charge a violation of the |