30 N.Y.S. 1126 | N.Y. Sup. Ct. | 1894
On August 3, 1891, Abraham Backer became insolvent, and made a general assignment for the benefit of creditors-to Benjamin F. Einstein. Subsequently, the general assignment was superseded by an agreement entered into between Abraham executed by 97 per cent, of the creditors, so it would take effect' Backer, his wife, his assignee, all of his creditors, and three trustees.. By the agreement, all of Backer’s property was conveyed and assigned to the three trustees, who undertook to convert it into money,, and distribute the avails pro rata among Backer’s creditors. This agreement is dated “October, 1891,” but when it was completely executed does not appear, but it was after December 15, 1891. October 7, 1891, Morris and Abraham Schneider recovered a judgment in the supreme court against Abraham Backer for $51,541.77.. When Backer failed,' Morris and Abraham Schneider were liable as-accommodation indorsers for Backer on several promissory notes, aggregating $41,250, which were made by Charles Schneider & Go.. Before December 15, 1891, Abraham Backer died. On December-15, 1891, Morris and Abraham Schneider and the three trustees agreed, in writing, that in case the compromise agreement should be according to its terms (as it subsequently was), the Schneiders
The sole question is how these claims should be offset as between these insolvent estates. The referee’s result was reached as follows:
■ October 7, 1891, judgment against Backer......................$51,541 77
M. & A. Schneider' paid on accommodation indorsements of Charles Schneider & Co.’s notes............$16,950 16 «
Deduct M. & A. Schneider’s claim against Charles Schneider & Co., as agreed........................ 15,000 00
1,950 16
Total amount of claims against Abraham Backer................$53,491 93
From this amount the referee deducted the dividend paid by defendants on Backer’s accommodation indorsements for M. & A Schneider ................................................... 7,716 82
$45,775 11
Twenty per cent, on $45,775.11 equals $9,155.02, for which, with interest as stipulated, the referee ordered a judgment. The defendants insist that the offset should have been made as follows:
Twenty per cent on claims of plaintiff against Backer ($53,491.93) equals ...................................................... $10,698 38
•Deduct amount paid by defendants on Backer’s accommodation indorsements for M. & A. Schneider............................. 7,716 82
Due from defendants to plaintiff.......................... $ 2,981 56
When this action was begun, Morris and Abraham Schneider would have had, had their claims not passed to their receiver, a right of action against the administrator or executor of Abraham Backer for $53,491.93. About this fact there is no dispute. By how much could this amount have been reduced by the administrator or executor? Not by $38,584.10, the full amount of Backer’s liability as accommodation indorser for Morris and Abraham Schneider, for that sum had not been paid by Backer or by his estate; but his personal representative would have been entitled to set off only the amount paid by him or them, or by both, which was $7,716.82. Powell v. Smith, 8 Johns. 249; Bonney v. Seeley, 2 Wend. 481; Hannay v. Pell, 3 E. D. Smith, 432; Elwood v. Deifendorf, 5 Barb. 398. Deducting $7,716.82 from $53,491.93 leaves $45,775.11,
$53,491.93—$38,5S4.10=$14,907.83 X .20.......................... $2,981 56
$53,491.93 X .20...................................... $10,098 38
$38,584.10 X .20..................................... 7,716 82
- $2,981 56
But the defendants’ claim is not fixed at $38,584.10, but it is fixed at $7,716.82; and there is no evidence in the record from which the referee would have been justified in finding that the claim would be increased in the future, and so we think that the referee adopted a correct principle in adjusting these demands. The plaintiff, through his attorney, repeatedly wrote letters to the defendants asking for an adjustment of the claims, to which no attention was paid, and we think the facts justified the referee in charging the defendants with costs. The judgment should be affirmed, with costs. All concur.