Porter, J.
It was the right of either member of the firm to secure the plaintiff, as one of its creditors, by a transfer of partnership property. (Mabbett v. White, 2 Kern. 443; Grazer v. Stellwagen, 25 N. Y. 915.)
The assignment, in this instance, was in the nature of a mortgage. It did not divest the entire title, but left a residuary interest in the assignors, which could be reached by their other creditors. Its primary purpose was to secure the payment of the debt; and the trust to account for the surplus was purely incidental. Such a trust is not within the condemnation of- the statute, and such- a reservation is not unlawful. (Leitch v. Hollister, 4 Comst. 211; Curtis v. Leavitt, 15 N. Y. 149; Dunham v. Whitehead, 21 id. 131.) The judgment of the Supreme Court should be affirmed.
All the judges concurring,
Judgment affirmed.