In re Brinkman
4 F. Cas. 144
S.D.N.Y.
1872
Check Treatment
BLATCHFORD, District Judge.

I think the most advisable course, in this matter, is to deny the prayer of the assignee’s petition for leave to sell the real estate and to dissolve the injunction granted by the order of July thirty-first, eighteen hundred and seventy-one, and vacate that order, and allow the property to be sold under the decree of foreclosure in the state court. The assignee in bankruptcy, having been a party to that *145suit, was instrumental in placing that suit in the position in which it was on the thirty-first of July, eighteen hundred and seventy-one, when he, for the first time, applied to this court to stay the sale under the decree in that suit, which was to take place three days afterwards.' It is quite apparent from the testimony on the reference, under the assignee’s petition, that there was no good reason for applying to this court to stay the foreclosure proceedings. They had reached a stage where, substantially, all the expenses, except those which would attend any sale of the property, even by this court, had been incurred in reaching a decree in the foreclosure suit and incurred by the action of the assignee, while a party to such suit, in suffering proceedings to go on without applying to this court to restrain them. It will become a question for consideration hereafter, whether the assignee ought not to be charged personally with liability for the amount of those expenses, and be compelled to refund them to the estate after they shall have been paid out of the proceeds of the land to the plaintiff in the suit, as being a waste, committed by him, of the estate. At present the petition must be dismissed, with costs to be paid by the assignee personally, and not out of the estate, and the injunction must be dissolved.